People v. Perkins

JUSTICE FREEMAN, dissenting:

I would grant rehearing in this case in order to provide additional guidance to our lower courts with respect to Rule 651(c) compliance.

Our opinion in this case holds that Rule 651(c)’s mandate of any amendments necessary for an adequate presentation of a petitioner’s contentions “requires counsel to allege available facts on the lack of culpable negligence to avoid the procedural bar of untimeliness.” 229 Ill. 2d at 44. Relying on People v. Boclair, the opinion notes that the State, when it files a motion to dismiss, has a choice regarding whether to assert the affirmative defense of timeliness. 229 Ill. 2d at 48, citing People v. Boclair, 202 Ill. 2d 89, 102 (2002). Given the State’s choice in this matter, our opinion necessarily recognizes that “[t]he timeliness of the petition and any excuse for a late filing are matters that counsel must provide assistance on at the second stage. That assistance includes amending the petition to allege any available facts showing a delay in filing was not due to the petitioner’s culpable negligence as required by the Act.” 229 Ill. 2d at 48.

In his petition for rehearing, Perkins argues that because his pro se petition did not address timeliness, his appointed counsel could have either “anticipatorily rebut [ted]” the State’s motion in the initial amended petition by including an excuse for delay in the initial amended petition or “[sought] leave to amend the petition to include those allegations after the State ha[d] moved to dismiss.” 229 Ill. 2d at 48-49. Perkins points out that the Rule 651(c) certificate that this court relied upon was filed by his attorney on August 25, 2003, some two months before the State alleged untimeliness in its motion to dismiss. Perkins states that his appointed counsel did not “anticipatorily rebut” any timeliness challenge in the amended petition nor did counsel seek leave to amend the petition to include such allegations after the State moved to dismiss on timeliness grounds. He notes that after the State’s motion was filed, no new certificate was filed by his attorney, who, according to our opinion, “must provide assistance on [this matter] at the second stage [and] [t]hat assistance includes amending the petition to allege any available facts showing a delay in filing was not due to the petitioner’s culpable negligence as required by the Act.” 229 Ill. 2d at 48. Perkins therefore suggests that, on this record, this court cannot say that counsel complied with Rule 651(c) with respect to the timeliness question. Moreover, the petition for rehearing contains an affidavit from Perkins in which he states that he told his appointed postconviction counsel that his appointed appellate attorney had given him erroneous advice about the time periods for filing a postconviction action. See People v. Johnson, 154 Ill. 2d 227, 243 (1993) (allowing consideration of an affidavit filed for the first time on appeal in the supreme court in determining Rule 651(c) compliance). Although this explanation may constitute a viable claim of lack of culpable negligence (see People v. Rissley, 206 Ill. 2d 403 (2003) (holding that the inaccurate legal advice of appellate counsel shows a lack of culpable negligence on the part of a late-filing, postconviction petitioner)), it was never raised by appointed counsel in response to the State’s motion to dismiss.

Under these circumstances, I do not believe that this court can “give effect to counsel’s official representation that he complied with Rule 651(c)” with respect to the timeliness issue. And in this respect, Perkins’ petition for rehearing raises an important general point that I feel is being overlooked. In order to establish compliance with the requirements of Rule 651(c), postconviction counsel must file a certificate of compliance indicating that he has consulted with his client, examined the record, and made any amendments to the pro se petition necessary for an adequate presentation of the contentions. Ordinarily, the certificate is filed at the same time the post-conviction petition is filed. This presents a problem, however, when, as in this case, the issue of timeliness is raised by the State in a motion to dismiss filed after the certificate has been filed. What happens in such circumstances? Our opinion is unclear as to this point and as a result may cause confusion for lower courts in its application. By not addressing this matter today, this court will undoubtedly be called upon to clarify its holding in a future case. I therefore would grant rehearing and address the matter now.

JUSTICE BURKE joins in this dissent.