Appeal from the Circuit Court of Cook County. Honorable Rickey Jones, Judge Presiding.
The opinion of the court was delivered by: Justice McNULTY
Defendant Michael Peoples appeals from an order of the circuit court granting the State's motion to dismiss his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). On appeal, defendant contends the dismissal must be reversed and the case remanded because the record fails to affirmatively show that defendant's appointed counsel complied with the requirements of Supreme Court Rule 651(c). 134 Ill. 2d R. 651(c). We reverse and remand with directions.
At the bench trial, Officer Stoll's testimony established that on the evening of March 16, 1997, defendant engaged in three separate hand-to-hand narcotics transactions. During each transaction, defendant exchanged items he obtained from a garbage can located at 4226 West Maypole for money. After the transactions, defendant left the packages in the garbage can and walked to 120 North Karlov. As Officer Stoll arrested defendant at 120 North Karlov, he saw his partner, Officer Kirk, recover a bag from the garbage can at 4226 West Maypole. The parties stipulated that 14 tinfoil packages were recovered, and one of the packages randomly selected tested positive for heroin.
The court convicted defendant of possession of a controlled substance with intent to deliver. On December 16, 1997, the court sentenced defendant to six years in prison, to run consecutively to two consecutive six-year sentences imposed in two separate cases (No. 97 CR 11213 and No. 97 CR 14892). *fn1
On direct appeal, the public defender filed a motion for leave to withdraw as defendant's appellate counsel and submitted a brief in support of the motion pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Defendant received copies of the brief and motion and was advised he had until August 18, 1998, to file a response. On that date, defendant filed a response. This court granted the motion and mistakenly noted that defendant failed to respond. People v. Peoples, No. 1-98-0124 (1998) (unpublished order under Supreme Court Rule 23).
On June 12, 2000, defendant mailed his pro se post-conviction petition, essentially alleging his trial counsel was ineffective because during pretrial investigation counsel failed to interview the State's witness and visit the crime scene. Defendant alleged that if counsel had conducted the proper pretrial investigation, counsel would have learned that it was impossible for Officer Stoll to see 4226 West Maypole from 120 North Karlov. Defendant further alleged that the evidence was insufficient, the State knowingly used perjured testimony, appellate counsel was ineffective for filing an Anders without first consulting him, and he was denied the right to appeal. Defendant attached his own affidavit and those of three individuals. All four affiants attested that it was impossible to see 4226 West Maypole from 120 North Karlov. Subsequently, the trial court appointed post-conviction counsel for defendant.
The State then filed a motion to dismiss defendant's pro se petition, first asserting that the petition was not timely filed and defendant did not allege any facts to show that the delay was not due to his culpable negligence. In the alternative, the State contended that the allegations in the pro se petition were waived, were refuted by the result of the direct appeal, and were merely conclusional.
Defendant's appointed post-conviction counsel filed a response entitled "Defendant's Partial Response to State's Motion to Dismiss (Statu[t]e of Limitations)," asserting that defendant was unaware of the deadline for filing a post-conviction petition. In support of this assertion, post-conviction counsel attached defendant's affidavit attesting that he was unaware of the filing deadline for his post-conviction petition until November or December 1999 when law clerks and other inmates informed him of the deadline. Post-conviction counsel also contended that it would be inequitable to strictly apply the filing deadline to defendant because he was denied the right to raise the issues on direct appeal. Post-conviction counsel further asserted that defendant did not waive the issues in his petition because the appellate court affirmed his conviction based on Anders without addressing or even acknowledging his pro se response, and the appellate court and his appellate counsel effectively denied him his right to appeal. In support of these allegations, defendant's affidavit attested that the appellate court decided the Anders motion without addressing his pro se response. Also attached to the response was the affidavit of an investigator for the public defender's office, Stephanie Turner, attesting that she visited the crime scene at night and determined it was impossible to see 4226 West Maypole from 120 North Karlov. Defendant's post-conviction counsel requested "that the State's Motion to Dismiss be denied on the basis of the Statute of Limitations and that counsel for petitioner be allowed to complete fulfillment of her obligations under Supreme Court Rule 651(c)."
At the hearing on the State's motion to dismiss, the court asked defendant's post-conviction counsel why she was entitled to file a partial response. Counsel replied as follows:
"I basically responded in major part to the State [sic] of Limitations issue, because before I put a substantial amount of work into the case, I wanted to get the Court's ruling with regard to the State [sic] of Limitations issue. Normally if there was no State [sic] of Limitations issue, I would probably file a supplemental petition on behalf of the client and, you know, supplement his original petition. But because the State raised the issue of the State [sic] of Limitations as a bar to proceeding on the case, I just addressed that issue."
Post-conviction counsel further stated that her response to the State's motion to dismiss was the complete "supplemental" as it related to the statute of limitations. The court granted the State's motion finding "the petition and supplemental petition for post conviction relief" failed to allege facts showing the untimely filing was not due to defendant's culpable negligence.
On appeal, defendant contends the dismissal must be reversed and the case remanded because defendant's post-conviction counsel did not file a Rule 651(c) certificate, and the record does not affirmatively show that defendant's appointed counsel complied with the requirements of Rule 651(c). 134 Ill. 2d R. 651(c). Specifically, defendant asserts that post-conviction counsel failed to expand the legal and factual arguments in defendant's petition; her contact with defendant did not include ascertaining his contentions of deprivation of constitutional rights; she inappropriately limited her compliance with Rule 651(c) by only addressing the statute of limitations issue; and she failed to attach an affidavit from trial counsel concerning her pretrial investigation. Defendant concedes that post-conviction counsel "substantially complied with the requirement that she examine the relevant portions of the trial record" and, therefore, was in "compliance with the record-reading requirement of Rule 651(c)."
A defendant is not entitled to effective assistance of counsel at a post-conviction proceeding but, is, however, entitled to a reasonable level of assistance. People v. Guest, 166 Ill. 2d 381, 412 (1995). Allegations of unreasonable assistance by post-conviction counsel do not present a constitutional basis upon which ...