JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman, Karmeier, and Burke concurred in the judgment and opinion.
The circuit court of De Kalb County dismissed as untimely Jahmal Perkins' post-conviction petition. The appellate court vacated the dismissal of the petition and remanded for further proceedings, holding that post-conviction counsel failed to comply with Supreme Court Rule 651(c). 367 Ill. App. 3d 895, 906-08. Rule 651(c) mandates, in pertinent part, amendments to pro se post-conviction petitions that are "necessary for an adequate presentation of petitioner's contentions." 134 Ill. 2d R. 651(c). We allowed the State's petition for leave to appeal. 210 Ill. 2d R. 315(a).
In this appeal, we consider whether Supreme Court Rule 651(c) requires post-conviction counsel to allege any facts necessary to excuse a late filing. We hold that Rule 651(c) requires amendment of an untimely petition to allege any available facts showing the delay in filing was not due to the petitioner's culpable negligence in an effort to excuse the untimely filing. We conclude that appointed counsel complied with Rule 651(c) in this case. Accordingly, we reverse the judgment of the appellate court and affirm the circuit court's judgment dismissing the post-conviction petition as untimely.
Following a jury trial, petitioner was convicted of armed violence, home invasion, residential burglary, and aggravated battery. 720 ILCS 5/33A--2, 12--11(a)(1), 19--3, 12--4(b)(1) (West 1996). The trial court sentenced him to concurrent terms of 24 years' imprisonment on the armed violence, home invasion, and residential burglary convictions, and 5 years' imprisonment on the aggravated battery conviction.
The appellate court vacated petitioner's convictions of armed violence and residential burglary based on a violation of the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11). The appellate court directed the circuit court clerk to amend the mittimus to reflect a single sentence of 24 years' imprisonment for home invasion and a concurrent 5-year sentence for the aggravated battery conviction. People v. Perkins, No. 2--98--1294 (2001) (unpublished order under Supreme Court Rule 23).
Petitioner subsequently mailed a post-conviction petition and a "Petition to Vacate the Void Sentencing Judgment" to the trial court. In his post-conviction petition, petitioner alleged imposition of a term of mandatory supervised release was unconstitutional with his determinate sentence. The petition to vacate alleged that petitioner's attorney had filed "several crucial motions" and a post-conviction petition without notifying petitioner and that this court had found sentencing error in a similar case.
The trial court docketed the petitions for further proceedings and appointed a public defender to represent petitioner, treating the two pleadings as one petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)). At a status hearing, appointed counsel stated that he had met with petitioner and that any amendment to the petition would be filed within three weeks. The State responded that it expected to file a motion to dismiss after reviewing petitioner's amended petition. Petitioner's attorney subsequently filed a certificate in accordance with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), confirming his in-person consultation with petitioner to ascertain petitioner's contentions of deprivation of constitutional rights, examination of the record of proceedings, and his conclusion that no amendment to the pro se petition was necessary for an adequate presentation of petitioner's contentions.
The State moved to dismiss the petition as untimely. The State asserted that the petition was filed outside the time limitation period provided in the Act and that petitioner had failed to allege facts establishing his lack of culpable negligence in the late filing.
At the hearing on the motion to dismiss, petitioner's attorney recited the two issues raised in the petition, emphasizing that petitioner was entitled to a new sentencing hearing because the trial court considered convictions that were later overturned on appeal. The State responded that the petition was untimely and petitioner had not alleged his lack of culpable negligence in the late filing. The State, therefore, argued that its motion to dismiss should be granted.
Petitioner's counsel replied that the appellate court changed petitioner's sentence when it vacated two of his convictions on direct appeal and ordered amendment of the mittimus. Counsel argued that the appellate court's decision restarted the time for filing a post-conviction petition. Based on the new beginning date for the limitation period, petitioner had until June 20, 2004, to file his petition. Thus, the petition was timely filed.
Counsel also argued that petitioner could not have raised the trial court's improper consideration of the vacated convictions earlier because that issue did not exist until the appellate court vacated the convictions. Further, counsel argued that the limitations period for filing a post-conviction petition was flexible and the court could consider equitable factors in determining whether the petition was timely. Counsel urged the trial court to consider "the fairness issue, that being whether or not the court took into consideration improperly *** two felony convictions at the time of sentencing which were later vacated." Finally, counsel argued that the court should not dismiss the petition as untimely because "it was not unreasonable or unconscionable."
The trial court ruled that the time for filing the post-conviction petition did not restart with the appellate court's decision vacating petitioner's convictions because that decision was not a resentencing or a new date of conviction. The trial court found that the petition was not timely filed and granted the State's motion to dismiss.
Petitioner appealed, contending his attorney failed to provide reasonable assistance. Petitioner asserted that counsel's arguments showed he did not understand the time limitations in the Act. As a result of his unfamiliarity with the Act, counsel failed to amend the petition adequately to allege petitioner's lack of culpable negligence in filing late as required to overcome the time bar.
The appellate court noted that the parties agreed the petition was not timely filed. 367 Ill. App. 3d at 897. The appellate court held that, if a pro se post-conviction petition is filed beyond the statutory deadline, under Supreme Court Rule 651(c), appointed counsel must make a reasonable attempt to determine whether a proper excuse exists for the late filing. 367 Ill. App. 3d at 900. Counsel must at least review the record and ask the petitioner about any possible excuse. If an ...