Appeal from the Circuit Court of Du Page County. No. 94-CF-1862 Honorable Ann Brackley Jorgensen, Judge, Presiding.
The opinion of the court was delivered by: Justice Colwell
Defendant, Len Burris, appeals the circuit court's order that dismissed as untimely his post-conviction petition. Defendant contends that the petition demonstrates that the late filing was not due to his culpable negligence.
Defendant was convicted following a jury trial of unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West 1998)) and unlawful production of cannabis sativa plants (720 ILCS 550/8(b) (West 1998)). Lawrence Tankus represented defendant during pretrial proceedings and at trial. On August 24, 1995, the court sentenced defendant to 24 months' probation.
The State filed a petition to revoke defendant's probation and apparently his probation was extended. On October 1, 1998, the State filed a second petition to revoke probation, alleging that defendant had been charged with unlawful possession of cannabis. On October 9, 1998, while represented by new counsel, defendant filed a post-conviction petition alleging that he received the ineffective assistance of counsel at trial.
The petition alleges that Tankus ineffectively presented defendant's motion to quash his arrest and suppress evidence, did not thoroughly cross-examine a key prosecution witness, failed to present evidence that would have corroborated defendant's testimony that he did not reside at the apartment where the cannabis plants were found, presented an ineffective and unprofessional closing argument, and failed to file a notice of appeal despite defendant's request that he do so. The petition acknowledges that it was not filed within the three-year statute of limitations but alleges that defendant was not culpably negligent in failing to timely file. According to the petition, defendant had learned only two months before that Tankus was using heroin at the time of defendant's trial and conducted the trial under the influence of the drug. Attached to the petition is a report from the Attorney Registration and Disciplinary Commission (ARDC) detailing Tankus's drug use and recommending to the supreme court that he be disbarred.
After defendant filed his petition, the State withdrew its petition to revoke probation and defendant's probation was terminated. The State then moved to dismiss defendant's petition, contending that the court lacked jurisdiction because defendant was no longer serving his sentence. At the hearing, however, the State argued only that the petition was not filed within the limitations period and defendant's allegations did not establish that he was not culpably negligent. The trial court agreed and dismissed the petition. The State argued, and the court held, that defendant was aware of the substantive allegations comprising his ineffective assistance claim at the time of trial or shortly thereafter, and the fact that Tankus's conduct was the result of heroin use was simply irrelevant to whether he provided ineffective assistance. Therefore, the receipt of the ARDC report did not excuse the late filing. Defendant filed a timely notice of appeal.
Defendant claims that he was not culpably negligent for filing his petition late because he only learned of Tankus's heroin usage approximately two months earlier when he received the ARDC report. In response, the State renews its argument that defendant knew at the time of trial of Tankus's alleged deficiencies and the precise reason for Tankus's conduct is irrelevant. We agree.
The Post-Conviction Hearing Act provides that a petition thereunder must be filed, at the latest, within three 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 (West 1998). The three-year filing period is a statute of limitations. People v. Wright, 189 Ill. 2d 1, 8 (1999).
Freedom from culpable negligence is very difficult to establish. People v. Perry, 293 Ill. App. 3d 113, 115 (1997); see People v. Montgomery, 45 Ill. 2d 94 (1970); People v. Diefenbaugh, 40 Ill. 2d 73 (1968). Erroneous advice from appellate counsel (People v. Lee, 292 Ill. App. 3d 941, 943 (1997)) and from prison officials (Perry, 293 Ill. App. 3d at 116) and the lack of access to a law library because the prison was on lockdown (People v. Mitchell, 296 Ill. App. 3d 930, 933 (1998); People v. McClain, 292 Ill. App. 3d 185, 188-89 (1997)) have been held not to excuse late filings.
Here, defendant claims his late filing is excused because he did not know until August 1998 that Tankus was under the influence of heroin during defendant's trial. Quite simply, this fact does not form any part of defendant's claim. Defendant fails to cite to any provision of the constitution that guarantees him the right to drug-free counsel. Rather, the constitutional right defendant claims was violated is the right to the effective assistance of counsel. The petition's allegations make it very clear that defendant knew in 1995 the facts that he now claims show that Tankus was ineffective.
A claim of ineffective assistance of counsel has two elements. A defendant must show that (1) his attorney's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984). That counsel was using alcohol or drugs at the time of defendant's trial does not establish per se ineffective assistance. See People v. White, 180 Ill. App. 3d 781, 791 (1989) (allegation that counsel's breath smelled strongly of alcohol during trial did not establish ineffective assistance in the absence of prejudice).
Defendant's verified petition states:
"During the presentation of motions to quash, Tankus was performing under an obvious influence of heroin. *** Burris and others in the courtroom noticed that Attorney Tankus stumbled and staggered as he walked and that his clothes were extremely ...