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People v. Rissley

March 15, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JEFFREY D. RISSLEY, APPELLANT.



The opinion of the court was delivered by: Justice Freeman

Docket No. 82536-Agenda 3-November 1998.

Defendant, Jeffrey Rissley, pled guilty in the circuit court of Bureau County to the aggravated kidnapping and murder of Kahla Lansing. At his sentencing hearing, a jury found defendant eligible for the death penalty and concluded that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial judge sentenced defendant to death on the charge of murder and to a term of 15 years' imprisonment on the charge of aggravated kidnapping. On direct appeal, this court affirmed defendant's convictions and sentence. People v. Rissley, 165 Ill. 2d 364 (1995). The United States Supreme Court denied certiorari. Rissley v. Illinois, 516 U.S. 992, 133 L. Ed. 2d 432, 116 S. Ct. 525 (1995).

In October 1995, defendant filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)). The court appointed counsel to assist defendant, and counsel filed an amended petition on March 1, 1996. Defendant claimed his conviction and sentence had to be reversed because he did not receive a fitness hearing and because he received ineffective assistance of counsel.

The State moved to dismiss the petition as time-barred. Defendant argued that his petition had been timely filed, and argued in the alternative that if his petition was not timely, his delay was not due to his culpable negligence. Specifically, defendant contended that he had relied on the advice of his appellate counsel on direct appeal, who informed him that he had three years from the date of his sentencing to file a post-conviction petition. Defendant submitted an affidavit from his appellate counsel to the effect that counsel had in fact so advised defendant. The circuit court denied the State's motion to dismiss the petition.

The State filed a second motion to dismiss the claims on the basis of waiver and res judicata. The circuit court dismissed some, but not all, of the claims without an evidentiary hearing. After a hearing, the court denied post-conviction relief on the remaining claims. Defendant appeals. 134 Ill. 2d R. 651. We find that the petition should have been dismissed for failure to comply with the time period required in the Post-Conviction Hearing Act. Accordingly, we vacate the court's orders addressing the merits of the petition, reverse the court's order denying the State's motion to dismiss on timeliness grounds, and remand with directions that the circuit court grant the State's motion to dismiss.

ANALYSIS

On appeal the State renews its argument that defendant's petition should have been dismissed in its entirety on limitations grounds. Defendant responds with the same arguments he made in the circuit court, i.e., that the petition was timely or, in the alternative, that the delay was not due to his culpable negligence. The dates pertinent to the parties' arguments are as follows: this court issued its opinion affirming defendant's conviction and sentence on March 30, 1995; defendant filed for a writ of certiorari in the United States Supreme Court on August 25, 1995; defendant instituted the instant post-conviction action in early October 1995; and the Supreme Court denied defendant's petition for certiorari on November 27, 1995. Defendant, with the aid of counsel, subsequently filed an amended post-conviction petition on March 1, 1996.

Timeliness of the October Petition

Around the time that defendant filed his post-conviction petition, the legislature twice amended section 1 of the Post-Conviction Hearing Act, which governed the limitations period on the institution of post-conviction actions. Defendant refers to both an earlier and a later version of the statute in support of his arguments, but the parties agree that the controlling version of the statute is the version in effect in October 1995, when the petition was filed. See People v. Bates, 124 Ill. 2d 81, 84-86 (1988). That version of the statute provided that

"No proceedings under this Article shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed or issuance of the opinion from the Illinois Supreme Court or 6 months after the date of the order denying certiorari by the United States Supreme Court or the date for filing such a petition if none is filed or 3 years from the date of conviction, whichever is sooner, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence." 725 ILCS 5/122-1 (West 1994).

The fundamental rule of statutory interpretation is to give effect to the intention of the legislature. We look first to the words of the statute, as the language of the statute is the best indication of the legislative intent. When the statutory language is clear, it must be given effect without resort to other tools of interpretation. It is never proper to depart from plain language by reading into a statute exceptions, limitations, or conditions which conflict with the clearly expressed legislative intent. County of Knox ex rel. Masterson v. Highlands, L.L.C., 188 Ill. 2d 546, 556 (1999); People v. Woodard, 175 Ill. 2d 435, 443 (1997).

Pursuant to the controlling version of the statute, the right to file a post-conviction action expired as soon as any of the listed specified time periods had elapsed. In this case, the parties agree that the first such event to transpire was the expiration of six months after the issuance of the opinion from this court affirming defendant's conviction and sentence. See 725 ILCS 5/122-1 (West 1994). This court issued its opinion affirming defendant's conviction and sentence on March 30, 1995. Six months elapsed on September 30, 1995. Defendant mailed his post-conviction petition to the clerk of the circuit court of Bureau County on October 6, 1995, and the clerk filed the petition on October 10, 1995. Both the mailing and the filing occurred more than six months after this court issued its opinion. Accordingly, the action was commenced too late.

Defendant advocates for a different interpretation of the statute. Defendant notes that prior to a July 1995 amendment the statute only barred the commencement of proceedings after the later of all of the listed events. See 725 ILCS 5/122-1 (West 1992). Indeed, the only change made to this statute by the July 1995 amendment was to change the word "later" to "sooner." See Pub. Act 88-678, eff. July 1, 1995. Defendant contends that in this prior version of the statute all of the events listed in the statute "described the termination of direct appeal." Accordingly, defendant argues, it is "obvious" that the legislature intended to create two limitations periods: six months from the end of direct appeal, or three years after conviction. Defendant urges that the post-July 1995 version of the statute, applicable to him, should be read consistently. Thus, defendant contends that the post-July 1995 version of the statute should be understood as allowing a defendant to file a post conviction until the earlier of (a) six months from the end of direct appeal, or (b) three years after conviction.

First, as previously noted, when a statute is clear and unambiguous it is improper to look beyond the plain meaning of its terms. County of Knox ex rel. Masterson, 188 Ill. 2d at 556; Woodard, 175 Ill. 2d at 443. Moreover, even if we were to look beyond the plain language of the statute, defendant's argument is undercut by the legislature's subsequent amendment of the statute.

Effective January 1, 1996, the legislature again amended the statute, this time removing all references to the issuance of this court's opinion and to proceedings before the United States Supreme Court. Thereafter, a post-conviction proceeding had to be commenced within six months after the denial of a petition for leave to appeal or the date for filing such a petition if none was filed, or 45 days after the defendant filed his or her brief in the appeal before this court (or 45 days after the deadline for filing that brief if no brief is filed), or three years from the date of conviction, whichever occurs sooner. 725 ILCS 5/122-1 (West 1996). By this amendment, the legislature removed any doubt that post-conviction petitions must sometimes be filed before the termination of proceedings on direct appeal. Thus, defendant's appeal to legislative intent would be unconvincing even if it did not run counter to the plain language of the statute.

Defendant also contends that, if read literally, the July 1995 amendment rendered much of the section "meaningless surplusage." For instance, defendant observes that "six months after the date for filing a cert. [sic] petition could never occur sooner than the denial of a petition for leave to appeal, or six months after the issuance of an opinion the cert. petition sought to challenge." Defendant argues that the legislature could not have intended to render superfluous the language regarding certiorari, and accordingly defendant urges us to give effect to the "true intent" of the legislature by "eliminating the `issuance of opinion' language in construing the statute."

Defendant bases his argument on the rule that statutes should be construed, if possible, so that no term is rendered superfluous or meaningless. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994). However, defendant overlooks the fact that his suggested interpretation of the statute breaks the very rule of construction upon which he relies, as defendant would have us affirmatively ignore the "issuance of opinion" clause. Accordingly, this argument is not convincing.

We find no reason to ignore the clear and unambiguous language of the statute. By its July 1995 amendment to the statute, the legislature clearly intended that thenceforth the right to file a post-conviction petition would expire upon the occurrence of the first of any of the listed events. One such event is the passage of six months after the issuance of the opinion by this court. In this case, this court issued its opinion on direct appeal on March 30, 1995. Defendant did not commence proceedings under the Post-Conviction Hearing Act until more than six months had elapsed after March 30, 1995. Accordingly, by the plain language of the statute, his petition was untimely.

Lack of Culpable Negligence

Defendant next argues that if this court were to hold that defendant's petition was untimely, we should still affirm the circuit court's determination that the delay was not due to defendant's culpable negligence. In his petition, defendant alleged that he filed his post-conviction petition in October, even though the Supreme Court had not yet then ruled on his petition for certiorari, "due to the change in the law, which, beginning on July 1, 1995, requires that a Post-Conviction Petition be filed within three years of the imposition of the death penalty or within six months of the denial by the United States Supreme court of a Petition for Writ of Certiorari, whichever is sooner."

In response to the State's motion to dismiss the petition, defendant alleged that when the legislature amended the statute in July 1995 his appellate counsel on direct appeal contacted him and advised him that if he wished to institute post-conviction proceedings he would now have to do so within three years after his conviction. Defendant attached an affidavit by his direct appeal counsel to his response to the State's motion to dismiss. In the affidavit, counsel stated that when the legislature amended the statute in July 1995 he so notified all of his incarcerated clients, including defendant. Counsel further averred that he advised defendant that he could not wait until certiorari was denied, but would have to file his post-conviction petition within three years of his October 1992 sentencing. Counsel averred that he did not at any time advise defendant that there was any relevance to the date that this court's opinion on direct appeal was filed. Counsel also stated that his office-the supreme court unit of the office of the State Appellate Defender-assisted defendant in filing his October 1995 pro se petition.

The trial court found that defendant had made a good-faith effort to comply with the statutory requirements, and the delay was caused by defendant's reliance on the advice of his appellate counsel. The court found that because of this reliance the delay was not due to defendant's culpable negligence.

Ordinarily we will reverse a trial court's determination whether delay was due to a defendant's culpable negligence only if that determination is manifestly erroneous. People v. Caballero, 179 Ill. 2d 205, 214 (1997); People v. Van Hee, 305 Ill. App. 3d 333, 336 (1999). In this case, however, the reason that the trial court's ruling must be reversed is not because of any fact finding or inferences from the evidence. The State does not argue that the court erred in finding that defendant relied on the advice of appellate counsel. Rather, the question is whether, assuming that defendant did rely on appellate counsel, as the trial court found, the court reached the correct legal conclusion that the delay was not occasioned by defendant's culpable negligence. Accordingly, the correct standard of review is de novo. People v. Woods, 306 Ill. App. 3d 1144, 1146 (1999) ("[t]he ultimate question regarding the sufficiency of the allegations contained in a post-conviction petition merits treatment as a legal inquiry requiring plenary appellate review"); People v. Perry, 293 Ill. App. 3d 113, 115 (1997) (applying de novo standard of review in determining whether allegations in post-conviction petition, taken as true, were sufficient to establish a lack of culpable negligence). See also Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 181 Ill. 2d 214, 218 (1998) (where there are no factual questions to be reviewed, and the only questions on appeal concern the application of the law to undisputed facts, the correct standard of review is de novo); Branson v. Department of Revenue, 168 Ill. 2d 247, 264-65 (1995) (issues of law are reviewed de novo, while issues of fact are reviewed deferentially). We find the court erred in its application of the law to the facts in this case.

Lack of culpable negligence is very difficult to establish. People v. Burris, 315 Ill. App. 3d 615, 617 (2000); Perry, 293 Ill. App. 3d at 115. Our appellate court has repeatedly held that a legal misapprehension does not constitute a sufficient basis for a finding of a lack of culpable negligence. See, e.g., People v. Mitchell, 296 Ill. App. 3d 930, 934 (1998) (defendant's erroneous belief that post-conviction petition had to be heard by same judge who presided over original proceedings concerning defendant held insufficient to excuse tardy filing) (and cases cited therein). Our appellate court has specifically held that defendants have failed to establish lack of culpable negligence despite claims that they received erroneous limitations advice from their direct appeal counsel (People v. Lee, 292 Ill. App. 3d 941, 943 (1997)), from inmate law clerks (People v. Stenson, 296 Ill. App. 3d 93, 96 (1998)), and from prisoner handbooks (Perry, 293 Ill. App. 3d at 114-17). Contra People v. Davis, 312 Ill. App. 3d 1117, 1119-20 (2000) (reliance on incorrect advice of direct appeal counsel regarding limitations period for filing post-conviction petition established lack of culpable negligence). This court has found insufficient grounds to excuse culpable negligence in the face of a petitioner's claims that he (1) had only a sixth-grade education and was not aware of the law regarding post-conviction proceedings; (2) was in jail and had no available funds with which to retain an attorney; (3) did not receive appointed counsel until after the statute of limitations had run; and (4) was, during his attempts to prepare a pro se petition, unable to obtain a transcript from the trial court to prepare his post-conviction petition. People v. Diefenbaugh, 40 Ill. 2d 73, 75 (1968). See also People v. Montgomery, 45 Ill. 2d 94, 96 (1970) (finding insufficient showing of lack of culpable negligence despite petitioner's submission of materials showing a general "condition of mental disturbance" during the time in which his post-conviction petition had to be filed).

We find additional support for our result in Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Coleman involved a federal habeas corpus petition. We note that this court regularly looks to Supreme Court habeas corpus case law to inform our analysis of post-conviction proceedings. See, e.g., People v. Franklin, 167 Ill. 2d 1, 20-21 (1995) (adopting the "cause and prejudice" test when a post-conviction petitioner raised issues he had procedurally defaulted by not raising them on direct appeal); People v. Flores, 153 Ill. 2d 264, 278-80 (1992); People v. Owens, 129 Ill. 2d 303, 317-19 (1989). In Coleman, the defendant was tried and convicted of rape and murder; his conviction and death sentence were affirmed on direct appeal. He filed a petition for habeas corpus in state court, which was denied in its entirety. Defendant's appeal of this judgment was dismissed on timeliness grounds, because he filed his notice of appeal three days late. Defendant subsequently filed a federal habeas corpus petition. The lower federal courts held that defendant had defaulted all of his claims for purposes of federal habeas because of the state court dismissal of his appeal.

The Supreme Court affirmed. One of the questions presented to the Court was whether defense counsel's tardy filing of the state habeas appeal constituted "cause and prejudice" sufficient to allow the federal courts to reach the merits of his federal habeas petition. The Court held that it did not. The Court noted that there was no right to assistance of counsel in state post-conviction proceedings and, accordingly, there could be no claim of ineffective assistance of counsel in such proceedings. The Court continued by observing that " `cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him." (Emphasis in original.) Coleman, 501 U.S. at 753, 115 L. Ed. 2d at 671, 111 S. Ct. at 2566. See, e.g., Van Hee, 305 Ill. App. 3d at 337 (lack of culpable negligence could be shown if record revealed that an inmate lacked a "meaningful opportunity" to prepare a post-conviction petition because of prison lockdowns); Mitchell, 296 Ill. App. 3d at 933 (same). The Court explained that an attorney's "ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must `bear the risk of attorney error.' " Coleman, 501 U.S. at 753, 115 L. Ed. 2d at 671, 111 S. Ct. at 2566-67, quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 408, 106 S. Ct. 2639, 2645 (1986). The Court concluded that "in those circumstances where the State has no responsibility to ensure that the petitioner was represented by competent counsel," i.e., state post-conviction proceedings, "it is the petitioner who must bear the burden of a failure to follow state procedural rules. In the absence of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors made in the course of the representation." Coleman, 501 U.S. at 754, 115 L. Ed. 2d at 672, 111 S. Ct. at 2567.

Defendant attempts to distinguish Coleman from the instant case by observing that there were no exceptions to the state limitations period which was transgressed in Coleman. By contrast, defendant observes, the Illinois Post-Conviction Hearing Act has "create[d] a special `safety valve' " by carving out an exception to the timeliness requirement for cases in which delay was not the result of a defendant's "culpable negligence." People v. Bates, 124 Ill. 2d 81 (1988). This argument is unconvincing, because the underlying state statute was not germane to the relevant analysis in Coleman. Rather, Coleman involved federal habeas corpus analysis, which does contain a "safety valve," when a petitioner can show "cause and prejudice" for a default of a claim in state court. Specifically, the question in Coleman was whether defense counsel's error constituted "cause" for purposes of excusing a procedural default in post-conviction proceedings; in the instant case the question is whether defendant may contend that an attorney's error absolves defendant of "culpable negligence" for purposes of excusing a procedural default in post-conviction proceedings. In this case, just as in Coleman, we find that the answer should be no.

Defendant notes that Coleman "left open the question of whether an error by counsel which completely deprived a defendant of any collateral attack on his conviction might give rise to a constitutional violation." Defendant contends that if counsel's advice in this case barred any consideration of defendant's post-conviction claims, such an error would have to constitute a cognizable instance of ineffective assistance of counsel. However, this court has already addressed the argument that post-conviction counsel was ineffective for waiving a claim, in People v. Davis, 156 Ill. 2d 149 (1993). There, we held that, because "post-conviction assistance of counsel is a creation of statute," a defendant "may not properly assert a claim of ineffective assistance of post-conviction counsel," notwithstanding that post-conviction counsel's failure to raise an issue resulted in a complete waiver thereof. Davis, 156 Ill. 2d at 159. See also People v. Flores, 153 Ill. 2d 264, 276 (1992), citing Wainwright v. Torna, 455 U.S. 586, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982) ("a petitioner cannot claim sixth amendment ineffective assistance of counsel in [post-conviction] proceedings").

Defendant's position is not improved by the fact that his appellate counsel on direct appeal, who gave him the erroneous advice, may not have been acting as his "counsel" at the time that the initial pro se post-conviction petition was filed. It is well established that "[a]ll citizens are presumptively charged with knowledge of the law." Atkins v. Parker, 472 U.S. 115, 130, 86 L. Ed. 2d 81, 93, 105 S. Ct. 2520, 2529 (1985). In this case, not only was defendant presumed to be aware of the law, specifically the amendment to the Post-Conviction Hearing Act which took effect July 1, 1995, he affirmatively declared in his pro se petition that he was aware of the amendment. In the final analysis, it simply would not be fair to allow defendant in this case to avoid the effect of the time bar by claiming reliance on advice of his former counsel. Under Coleman and Davis, a post-conviction petitioner who filed an untimely petition based on the advice of then-current counsel would not be able to demonstrate a lack of culpable negligence. We see no reason to conclude that defendant in this case was less culpably negligent than a person in the above situation because the person on whose advice he relied was not then his counsel. Reliance on advice of counsel does not constitute a lack of "culpable negligence" sufficient to excuse an untimely filing of a post-conviction petition. To the extent that our appellate court's decision in Davis, 312 Ill. App. 3d 1117, holds to the contrary, it is overruled.

CONCLUSION

For the reasons above stated, we reverse the circuit court's denial of the state's motion to dismiss defendant's post-conviction petition and remand with directions to dismiss defendant's petition in its entirety.

Reversed and remanded with directions.

CHIEF JUSTICE HARRISON, dissenting:

I cannot concur in the majority's ill-conceived disposition in this capital case. Although the majority analysis furnishes a convenient and superficial means of avoiding an eye-opening discussion of trial counsel's utter ineptitude, it does so by importation of an irrelevant federal standard which, ironically enough, was meant to assure deference to state courts with the competency and vision to interpret and implement their own procedural statutes and rules. The majority reaches its result without once deigning to define the term "culpable negligence" or to examine its usage and interpretation in other state contexts. An inquiry into the presence or absence of "culpable negligence," which the statute in question requires, would seem to warrant at least that much.

This court has referred to the provision "lack of culpable negligence" in this context as a "safety valve" (People v. Bates, 124 Ill. 2d 81 (1988)), and the legislature no doubt intended that the term would be so employed to mitigate the harsh consequences of what has at times seemed like an ever-changing statute of limitation. While paying lip service to legislative intent, the majority opinion effectively rewrites the statute, deleting the concept of "culpable negligence" altogether and inserting its own borrowed standard. In doing so, it renders irrelevant the petitioner's mental state and the diligence with which he pursued his post-conviction remedy; it summarily sweeps aside those who have sustained constitutionally cognizable wrongs, but lack the intelligence or assistance necessary to preserve and timely assert their claims; and it leaves without a remedy those who have reasonably relied upon the advice of counsel. Today, this court has hammered the last nail into the coffin of the culpable negligence concept and buried with it the last chance many may have for justice.

Culpable negligence is hardly a novel concept. The term appears in numerous state statutes and court rules. See 55 ILCS 5/3-12013, 3-14044 (West 1998) (Counties Code); 65 ILCS 5/10-1-40 (West 1998) (Illinois Municipal Code); 70 ILCS 1210/30 (West 1998) (Park System Civil Service Act); 70 ILCS 1215/33 (West 1998) (Park Annuity and Benefit Fund Civil Service Act); 70 ILCS 2605/4.33 (West 1998) (Metropolitan Water Reclamation District Act); 110 ILCS 70/46 (West 1998) (State Universities Civil Service Act); 725 ILCS 5/122-1(c) (West 1998) (Post-Conviction Hearing Act); 750 ILCS 50/5 (West 1998) (Adoption Act); 134 Ill. 2d R. 606(c) (Supreme Court Rule 606(c)). Thus, it might behoove us to take a few moments to consider what the legislature means when it uses the term.

Culpable negligence has been defined as"[n]egligent conduct that, while not intentional, involves a disregard of the consequences likely to result from one's actions." Black's Law Dictionary 1056 (7th ed. 1999). Alternatively, culpable negligence has been described as "something more than negligence" involving "an indifference to, or disregard of, consequences." 65 C.J.S. Negligence §19 (2000). Our Illinois court opinions, and legislative usage, indicate that culpable negligence is commonly understood and employed in a manner consistent with these definitions.

In People v. Wilson, 143 Ill. 2d 236, 248 (1991), this court implicitly equated culpable negligence with recklessness. In Wilson, this court cited with approval an opinion of the highest court of the State of New York describing culpable negligence as a " `conscious choice of a course of action, in disregard of the consequences' " that might follow. Wilson, 143 Ill. 2d at 248, quoting People v. Decina, 2 N.Y.2d 133, 140, 138 N.E.2d 799, 803-04, 157 N.Y.S.2d 558, 565 (1956). Section 5 of the Adoption Act allows for late filing of a petition, by leave of court, upon a showing that the delay "was not due to the petitioners' culpable negligence or their wilful disregard of the provisions of this Section." (Emphasis added.) 750 ILCS 50/5 (West 1998). In considering a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 1998)) courts have been routinely called upon to determine whether litigants have exercised due diligence or, conversely, have willfully disregarded the process of the court or were so indifferent to it that they should be chargeable with culpable negligence. See Pronto Two Ltd. v. Tishman Speyer Monroe Venture, 274 Ill. App. 3d 624, 629 (1995); Klein v. Steel City National Bank, 212 Ill. App. 3d 629, 638 (1991); Cunningham v. Miller's General Insurance Co., 188 Ill. App. 3d 689, 694 (1989); Verson Allsteel Press Co. v. Mackworth Rees, Division of Avis Industrial, Inc., 99 Ill. App. 3d 789 (1981).

It seems clear to me that culpable negligence is commonly understood as synonymous with a willful disregard of, or conscious indifference to, consequences likely to follow. Obviously, the defendant in this case was not guilty of culpable negligence when he relied upon the advice and expertise of a highly respected attorney who assisted him in the preparation and filing of his post-conviction petition, but filed a mere six days too late. Add to these circumstances the amendment of the statute in a manner that rendered parts of it meaningless surplusage and the whole ambiguous and, quite frankly, I do not see how any reasonable and impartial person could find this defendant guilty of culpable negligence. A meaningful review of the facts will illustrate my point.

Against a changing statutory backdrop, the following procedural events unfolded in this case. Defendant was sentenced to death by an order entered in the circuit court on October 9, 1992. Sentencing on aggravated kidnapping took place on October 16, 1992. As a result of the appeal to this court which followed, an opinion was filed on March 30, 1995.

Defendant's initial post-conviction petition, filed in the circuit court on October 10, 1995, recites that it was mailed on October 6, 1995, by an "administrative secretary," presumably associated with the Supreme Court Unit of the Office of the State Appellate Defender, which had assisted defendant in the preparation of the petition. An affidavit of Charles Scheidel, deputy defender with that agency, acknowledges the assistance provided defendant in the preparation of his petition. Moreover, affidavits of correctional personnel in the record reflect the State Appellate Defender's continuing communication with defendant after this court affirmed his conviction on direct appeal. Visitation records indicate defendant was visited by State Appellate Defender attorneys Timothy Gabrielsen and Charles Scheidel on May 25, 1995, June 21, 1995, and October 5, 1995. The latter date is of course the day before defendant's petition was mailed. The Condemned Unit's telephone logbook from Pontiac Correctional Center indicated that defendant placed a call to Charles Scheidel on September 5, 1995, and again on October 2, 1995. According to the records office supervisor at Pontiac, defendant received mail from the Office of the State Appellate Defender on the following dates: March 31, 1995; April 20, 1995; April 21, 1995; May 30, 1995; June 1, 1995; June 3, 1995; June 9, 1995; June 24, 1995; June 27, 1995; June 28, 1995; July 5, 1995; July 19, 1995; July 28, 1995; August 26, 1995; August 31, 1995; September 2, 1995; and September 28, 1995.

As part of defendant's response to the State's motion to dismiss, the defense included the aforementioned affidavit of Charles Scheidel, indicating that Scheidel, aware of impending legislative changes to the Post-Conviction Hearing Act (725 ILCS 5/122-1(c)), had advised defendant that his post-conviction petition would have to be filed within three years of his October 1992 sentencing. Scheidel states, "At no time did I advise him that the date the [supreme court] opinion was filed had any significance." Scheidel in fact thought it had none. Addressing the statutory amendments in question, he observed:

"The obvious intent of the legislature was to give defendants six months from the end of direct appeal or three years from conviction, whichever came sooner. The mere filing of an opinion does not end direct appeal unless no petitions for rehearing or certiorari are filed. To interpret this statute as the State apparently has renders significant portions of it meaningless surplusage. The date for filing certiorari or denial of certiorari has to be later than the date of the [Illinois Supreme Court] opinion!"

Scheidel's evaluation as to the legislature's intent was not unreasonable given that the previous version of the statute (effective a mere three months before defendant filed) did in fact place significance on the termination of a direct appeal, and the interim version, applicable to defendant (replaced by another version after only six months), was ambiguous, containing meaningless surplusage.

Whether Scheidel was ultimately proved right or wrong by subsequent legislative action is not the issue and entirely misses the point. Whether defendant was entitled to counsel or not is equally irrelevant. The inquiry here is whether this defendant proceeded in a diligent and reasonable manner or whether he was indifferent to the post-conviction process and thus guilty of culpable negligence. I have no doubt that defendant was not culpably negligent. What more would the majority require of this defendant? Perhaps in the six months at his disposal he could have graduated from law school and acquired experience and knowledge superior to that possessed by Mr. Scheidel, who has served as defense counsel for capital defendants in this court for at least the last 20 years? Probably not.

This court has methodically taken a provision which the legislature obviously intended as a safeguard and has unabashedly rendered it a nullity. This decision represents the culmination of that effort, an assurance that no petitioner will ever demonstrate lack of culpable negligence; yet the majority continues to pay homage to the hoax that the "safety valve" has become.

Certainly others have recognized the emasculating effect of this court's decisions. In Bates, Justice Clark debunked the majority's characterization of "lack of culpable negligence" as a "safety valve," stating as follows:

"Review of the pertinent case law indicates the utter fallacy inherent in the majority's reasoning. My research failed to find even one appellate or supreme court case in which a post-conviction petition was allowed based on a `showing that the delay was not due to *** culpable negligence.' [Citation.]" Bates, 124 Ill. 2d at 90 (Clark, J., dissenting).

More recently, in People v. Perry, 293 Ill. App. 3d 113 (1997), Justice Zwick made the same observation:

"My research has not disclosed any decision in which the court found that the delay in filing a late post-conviction petition could be excused because of an absence of `culpable negligence' by the petitioner. It seems that the courts have universally emasculated the `absence of culpable negligence' language in the statute. Even mental illness isn't enough to justify a delay. This construction effectively nullifies the intent of the legislature as expressed in the clear statutory language." Perry, 293 Ill. App. 3d at 118 (Zwick, J., dissenting).

The stark truth of the matter has not been lost on federal courts.

On at least three occasions, the United States Court of Appeals for the Seventh Circuit acknowledged, implicitly or explicitly, that no Illinois precedent existed wherein lack of culpable negligence was found so as to excuse an untimely filing. See United States ex rel. Johnson v. Gilmore, 860 F. Supp. 1291, 1294-95 (N.D. Ill. 1994), aff'd, 103 F.3d 133 (7th Cir. 1996); Jones v. Washington, 15 F.3d 671, 674 (7th Cir. 1994); Harris v. DeRobertis, 932 F.2d 619, 621-24 (7th Cir. 1991). The courts' comments were made during discussions of exhaustion of state remedies in the context of federal habeas corpus proceedings. In Jones, the United States Court of Appeals for the Seventh Circuit stated:

"[T]his court acknowledged in Harris v. DeRobertis that `during the forty years since the provision was included, the Illinois courts have failed to produce even a single published opinion in which the court found a lack of culpable negligence.' " Jones, 15 F.3d at 674, quoting Harris, 932 F.2d at 622.

Recently, one published state opinion emerged which held a petitioner had established lack of culpable negligence in circumstances virtually indistinguishable from these. See People v. Davis, 312 Ill. App. 3d 1117 (2000) (petitioner specifically alleged what his attorney told him, supported his allegations with the attorney's affidavit, and filed his post-conviction petition on the date he was advised to do so). The majority's opinion promptly and specifically overrules Davis.

Is our court system so insecure, our concept of justice so jaded, that we have to pervert our analysis in the manner of the majority opinion, ignoring the will of the legislature and the simple terminology it employs, so that we might deprive this defendant of the opportunity to have his substantive issues considered by this court? I think not.

The majority apparently believes that the disposition of this issue should be controlled by the United States Supreme Court's decision in Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). We are not concerned-as was the Supreme Court in Coleman-with the "relationship between state procedural defaults and federal habeas review." Coleman, 501 U.S. at 729, 115 L. Ed. 2d at 655, 111 S. Ct. at 2553. Justice O'Connor made clear at the outset in that case: "This is a case about federalism. It concerns the respect that federal courts owe the States and the States' procedural rules when reviewing claims of state prisoners in federal habeas corpus." Coleman, 501 U.S. at 726, 115 L. Ed. 2d at 654, 111 S. Ct. at 2552. I submit that we are due no respect when we shrink from our duty to apply the plain language of our statutes, we disregard the clear voice of our legislature, and in so doing we contrive standards foreign to our proper inquiry for no apparent purpose other than to foreclose the right to review. Where in Coleman does the Court speak of culpable negligence? Where does it address the intent of our legislature? The majority states that "this court regularly looks to Supreme Court habeas corpus case law to inform our analysis of post-conviction proceedings." I submit this court has now done more than that: this court has relinquished independent analysis of this state issue to the federal government in favor the ready crutch that borrowing has become. This is surely not what Justice O'Connor had in mind. Unlike the situations presented in People v. Franklin, 167 Ill. 2d 1 (1995), People v. Flores, 153 Ill. 2d 264 (1992), and People v. Owens, 129 Ill. 2d 303 (1989), where the "procedural default" was a failure to raise issues, the "procedural default" in this case was a failure to timely file (though the circuit court did not actually so find), a matter specifically addressed by our legislature in the statute itself and for which a standard of resolution is provided: the presence or absence of culpable negligence.

Since the facts of this case clearly establish lack of culpable negligence, as indeed the circuit court found, I will address defendant's substantive issues.

Defendant's pro se petition for post-conviction relief alleged that (1) he was denied due process and effective assistance of counsel where he was receiving "prescribed medication" at the time of his guilty plea and capital sentencing hearings, but neither the prosecution nor defense counsel moved for a fitness hearing; (2) he was denied effective assistance of counsel where trial counsel failed to investigate and introduce relevant mitigating evidence at the second stage of the capital sentencing; (3) he was denied effective assistance of counsel where appellate counsel (a) failed to challenge on direct appeal trial counsel's failure to file certificates pursuant to Supreme Court Rule 604(d), and (b) failed to raise the claim that his attorneys were conflicted in advancing and arguing his motion to withdraw guilty plea, because they were placed in a position of arguing their own incompetence; (4) he was denied effective assistance of counsel where his decision to plead guilty was premised on the false statement of one of his defense attorneys, John Hedrich, that his other counsel, J.D. Flood, concurred in the decision to plead guilty; and (5) he was denied effective assistance of counsel where his trial counsel refused to permit him to testify at the hearing on the motion to withdraw guilty plea.

Attorney John Paul Carroll was appointed to represent defendant in this post-conviction matter, and subsequently filed an amended post-conviction petition on defendant's behalf claiming, inter alia, that (1) he was denied effective assistance of counsel where one of his attorneys, John Hedrich, (a) pressured him into pleading guilty and misrepresented facts in persuading him to do so, (b) then did not testify or participate at the hearing on defendant's motion to withdraw the guilty plea, and advised defendant he could not testify; (2) he was denied effective assistance of counsel where lead counsel, John Hedrich, was told by the trial court that it would grant a motion for change of venue, if made (and, in effect, delay the trial), but Hedrich declined to make such a motion; (3) he was denied effective assistance of counsel where Hedrich filed a motion to suppress defendant's confession after defendant had already entered a plea of guilty; (4) he was denied effective assistance of counsel where his lead counsel, John Hedrich, labored under a conflict of interest after he was allegedly assaulted by Bureau County State's Attorney Marc Bernabei and Hedrich thereafter placed his own safety over the interests of his client, essentially abandoning his client, although he still remained counsel of record; and (5) he was generally denied effective assistance of counsel due to Hedrich's substandard representation, a claim supported by selected quotations of Hedrich during the course of these proceedings.

Although various comments of the circuit court make its ruling somewhat unclear and ambivalent, it appears that the court limited the evidentiary hearing to an inquiry concerning "the background of [defendant's] conversations with Mr. Hedrich prior to the plea of guilty and any testimony as to what Mr. Hedrich may have left out of the motion to vacate [the guilty plea]." In effect, the defense was allowed to inquire concerning misrepresentations which may have induced defendant to plead guilty. In the course of a rambling ruling, the ebb and flow of which detracted from any firm sense of its perimeters, the court also appears to have given the defense some leeway to present evidence on the conflict of interest issue. Among the claims ostensibly dismissed were claims relating to "change of venue, abandoning the client, and the motion to suppress."

I begin my discussion of the merits with a comprehensive review of the evidence adduced at the evidentiary hearing on defendant's post-conviction petitions, supplemented, where need be, by textual references to the record of prior proceedings in this case. In particular, I will set forth, extensively, selected comments of defendant's "lead" counsel, John Hedrich, without which there could be no genuine understanding of the attorney-client relationship in this case, of the quality of representation this capital defendant received, or of misrepresentations that may have been made to defendant. I note at the outset that much of Hedrich's testimony is highly contradictory.

John Hedrich testified regarding his role in representing defendant in this death penalty case. Hedrich, who was 61 years old when he was appointed interim public defender and assigned to represent defendant, testified that he had been a licensed attorney since 1955. He estimated that only 2% to 4% of his law practice was criminal. He described himself as a "blood and guts trial attorney."

Hedrich had been an assistant State's Attorney during a four-year period in the 1960s. He had handled primarily misdemeanors, although he claimed he had assisted on some felonies. Seeking clarification on that point, defense counsel inquired further:

"Q: During that time you never did a criminal jury by yourself, did you, ever?

A: Oh, yes, I did.

Q: You did a criminal jury by yourself?

A: Well, is paternity criminal?

Q: Well, I don't think it is, sir.

A: Well, State's Attorney prosecuted those, I did those."

Hedrich finally admitted he could recall participating in only one felony jury trial, and that as second chair. Describing the nature of his duties as assistant State's Attorney, Hedrich explained, "Judge Wampler was the State's Attorney and I did what he told me, but a lot of it was with civil with [sic] the County Board ***." Defense counsel then asked Hedrich:

"Q: Isn't it true, sir, that you were not qualified to represent [defendant]?

A: I, no, I don't, yes, that's true.

A: Not even close, no."

Hedrich eventually conceded that he was at the "bottom of the list" for purposes of representing a capital defendant. He had advised Kathy Austin, his paralegal, that he "certainly wasn't qualified" to represent defendant. Austin was the person who helped him "get up the motions." Hedrich acknowledged he had advised the trial court, on the record, that he was not qualified to represent defendant. Inexplicably, Hedrich later testified that he was "competent" to represent defendant.

Because he considered himself unequal to the task of representing defendant at the time he was appointed, and because he had his own law practice to attend to, Hedrich had asked the trial court for assistance and had received the court-ordered services of J.D. Flood, Grundy County public defender, who had been appointed to act as second chair to Hedrich's predecessor in the case, Mathew Maloney. It appears that Hedrich thought highly of Flood, and also saw fit to rely upon Maloney in the early stages of Hedrich's representation of defendant, as the following exchanges at a hearing on February 20, 1992, indicate:

"MR. HEDRICH: Well, what Mr. Flood has told me, and he is my senior attorney because he's the public defender and he has tried murder cases before, he wrote me a letter today and he said here's two motions in rough draft which we ought to file and then when those are disposed of, file the motion on jurisdiction. Now I didn't have time to get his reasoning, but I'm sure that J.D. Flood knows what he's talking about.

MR. HEDRICH: If the court please, I'm advised by Mr. Maloney and advised by Mr. Flood, Mr. Maloney, a very competent attorney, he has been recognized as one of the finer criminal attorneys in the circuit, Mr. Flood has been in this a lot more than I have, I will follow, I get their advice and I do it and I'll relate the advice of the State's Attorney to them and see what they say.

STATE'S ATTORNEY [Marc Bernabei]: Is Mr. Maloney participating in the defense of this case?

MR. HEDRICH: Mr. Maloney is advising me of what is in the file and, yes, well, no, he's not, well, I don't know what's going on, Marc, when I don't know I go over and ask Mr. Maloney, why did you do this, why is this here, why have you got a water bill."

As the colloquy continued, the State's Attorney and the trial court made comments which appear to be an attempt to shore up on the record what might otherwise be seen as questionable defense representation in the person of Hedrich:

"STATE'S ATTORNEY: I think that's good, I'm glad he's cooperating.

THE COURT: I think Mr. Hedrich certainly has the right to consult with Mr. Maloney as to why Mr. Maloney did certain things that he did up until the time that he withdrew from the case.

STATE'S ATTORNEY: Judge, I think it's great Mr. Maloney is doing that. That means that there is three [sic] lawyers now representing the defendant and I think the record should reflect that.

MR. HEDRICH: No. Mr. Maloney is not.

STATE'S ATTORNEY: And I think that's good, I mean, I'm pleased to hear that.

MR. HEDRICH: I have to ask what's in the file and why it's there or why not."

The advice rendered by Maloney in the early stages of Hedrich's representation was apparently short-lived. Thereafter, his primary source of assistance was presumably J.D. Flood; however, the degree to which Hedrich actually relied upon even Flood is a matter upon which Hedrich offered contradictory testimony. When questioned at the evidentiary hearing as to whether Flood had come over to help him on the case, Hedrich responded, "Well, he didn't come over to help me, no, I talked to him on the phone."

It appears-at least from portions of Hedrich's post-conviction testimony-that he was operating on his own much of the time, notwithstanding his constant assertions that he sought the advice of those more qualified. If he did procure such assistance, it was not apparent in his courtroom presentations up to and including defendant's guilty plea. For examples, I quote at length from hearings on March 2, 1992, and May 26, 1992, respectively:

"MR. HEDRICH: I would like to advise the court that I have availed myself of research from national organizations, capital resources, also I have had offers of professors or law schools where law students do research work guided by the professors and I have had offers from other attorneys, too, to help in the research of the matter. And, of course, those people don't care about the defendant but the problem here is the constitutional questions, the Constitution, of course, is 200 years old and 100 years we'll all be dust but the people will still be reading these cases under the Constitution. I think particularly Article 3 that says the trial of all crimes shall be held in the state where the said crime has been committed.

THE COURT: Mr. Hedrich, there hasn't been any motion filed, there is nothing before me ***.

THE COURT: The defendant is-has filed a motion requesting a continuance of this cause or in the alternative the removal of the case to the federal court or to the State of Iowa. *** Mr. Hedrich, assuming that you can prove all of the allegations in your motion, or maybe I should say assuming that you can prove a sufficient number of the allegations in your motion to justify a conclusion that the defendant cannot receive a fair trial in Bureau County, do you have any authority which would justify this Court to remove this case to federal court?

MR. HEDRICH: No, Your Honor.

THE COURT: Do you have any authority which would justify this Court moving this case to a state court in Iowa?

MR. HEDRICH: No, Your Honor, except the State's Attorney has said that those people are standing ready to try ...


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