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People v. Johnson

Supreme Court of Illinois

January 20, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,
v.
ALLEN R. JOHNSON, Appellant.

          JUSTICE FREEMAN delivered the judgment of the court, with opinion.Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

          OPINION

          FREEMAN JUSTICE

         ¶ 1 Defendant Allen R. Johnson appeals from the dismissal of his postconviction petition as untimely. This court allowed defendant's petition for leave to appeal (Ill. S.Ct. R. 315 (eff. Jan. 1, 2015)), and we now consider the timeliness of defendant's petition within the meaning of section 122-1(c) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 2008)). For the following reasons, we affirm the judgment of the appellate court.

         ¶ 2 BACKGROUND

         ¶ 3 In 2005, defendant was found guilty of first degree murder and sentenced to a 50-year term of imprisonment. On direct review, the appellate court affirmed his conviction and sentence in a Rule 23 order on May 7, 2007. People v. Johnson, No. 2-05-0507 (2007) (unpublished order under Supreme Court Rule 23). Defendant neither filed a petition for leave to appeal to this court nor a petition for writ of certiorari to the United States Supreme Court.

         ¶ 4 On August 25, 2008, defendant filed a pro se postconviction petition. He acknowledged that the petition was untimely but alleged that the delay was not due to his culpable negligence. Defendant calculated the petition's due date as March 11, 2008. In calculating that date, he noted that he would have had until June 11, 2007, to file a petition for leave to appeal to this court and until September 11, 2007, to file a petition for writ of certiorari to the United States Supreme Court. Accordingly, defendant claimed his petition was due six months from the September 11, 2007, date. In the petition, defendant asserted claims of error based on ineffective assistance of trial counsel, ineffective assistance of appellate counsel, failure to suppress his confession, false testimony of a police detective before the grand jury, and a discovery violation. An affidavit from a fellow prison inmate and "freelance paralegal, " Christopher Askew, was attached to the petition. Askew averred that he helped defendant prepare the petition, but due to circumstances beyond their control, the petition had been delayed. Askew stated that although he and defendant discussed the petition in January 2008, defendant was unable to obtain the record from the law library until March 19, 2008, and after that, a series of prison lockdowns prevented the timely completion of the petition. Included with Askew's affidavit was a memo from a prison counselor verifying that the prison had been on lockdown from March 25 through April 18, 2008, and that there had been one-day lockdowns on April 24 and May 15, 2008. The Winnebago County trial court summarily dismissed the petition on the basis that it was not timely filed and also found that defendant had failed to allege facts showing that the delayed filing was not due to his culpable negligence. Defendant appealed the dismissal, and in 2010, the appellate court reversed and remanded the cause to the trial court for second-stage proceedings. People v. Johnson, No. 2-09-0350 (2010) (unpublished order under Supreme Court Rule 23).

         ¶ 5 On remand to the trial court, counsel was appointed to represent defendant.Subsequently, defense counsel filed a motion to allow the late filing of defendant's petition. The motion repeated the allegations in defendant's petition that the late filing of the petition was not due to defendant's culpable negligence, but to the difficulty in obtaining the record from the law library and to prison lockdowns.

         ¶ 6 On June 8, 2011, an evidentiary hearing on the issue of timeliness took place before Judge Steven Vecchio. Defendant testified that sometime in 2007, he received documents from the appellate court indicating that his conviction and sentence had been affirmed. At that time, he was not sure what steps to take so he asked various people at the prison and made numerous telephone calls home asking for help. Sometime in early January 2008, he was approached by fellow inmate Christopher Askew, and they had a conversation in which Askew indicated he could help defendant file a postconviction petition. Askew told defendant that he needed to look at defendant's transcripts and court documents so that he could prepare the petition. Defendant requested his legal papers from the law library, and after a period of delay, he and Askew were able to retrieve them, and Askew began working on the petition. Defendant further stated that a series of prison lockdowns in March, April, and May 2008 delayed the completion of the petition. On cross-examination, defendant admitted that although he referred to Askew as a "jailhouse lawyer, " he knew Askew was not a licensed attorney. Defendant nonetheless relied on Askew because defendant knew "nothing" about the law and felt he could not file a petition on his own. Defendant also admitted that initially he was unaware of a deadline to file his petition but subsequently became aware that there was a deadline, although he never knew what the deadline was. Further, he was unable to recall when he became aware that there was a deadline.

         ¶ 7 Judge Vecchio granted defendant's motion to file the petition late, finding that defendant could not be culpably negligent because defendant initially had been unaware of the deadline for filing a petition and had relied on Askew for help. On that same date, defense counsel adopted the petition and filed a Rule 651(c) certificate. Ill. S.Ct. R. 651(c) (eff. Feb. 6, 2013).

         ¶ 8 Subsequently, the case was reassigned to Judge Randy Wilt in January 2012. In October 2012, the State filed a motion to dismiss defendant's petition. In the motion, the State noted that although the timeliness issue had already been "resolved" by Judge Vecchio's prior ruling, it included the issue in the motion to avoid waiver. The State disagreed with defendant's calculation of the petition's due date, arguing that the petition was due on November 7, 2007, which was six months after the filing of the appellate court's May 7, 2007, Rule 23 order. Regarding the substantive claims in the petition, the State argued that defendant had failed to make a substantial showing of a constitutional violation. Oral argument on the State's motion was heard in July 2013, where the parties and the court agreed that Judge Vecchio had already ruled on the timeliness issue.

         ¶ 9 In a written order, Judge Wilt granted the State's motion and dismissed defendant's petition in September 2013, finding that the petition was untimely and that the claims in the petition had no merit. Regarding timeliness, the court referred to Judge Vecchio's prior order excusing the late filing of the petition as "inexplicable" and found that the prior order was not dispositive. The court noted that when the prior order was decided, the case had been remanded from the appellate court and the issue had "not been briefed and properly litigated." It explained that "given the circumstances, " the issue was still properly before the court to decide. The court stated that because the issue of timeliness had since been properly briefed and argued, it determined that the petition was untimely and subject to dismissal on that basis. The court calculated the due date of the petition as February 7, 2008, which was six months after the expiration of the 90 days in which defendant would have had to file a petition for certiorari. It further found that defendant's delay in filing the petition was due to his culpable negligence. Noting defendant's claims of delay based on prison lockdowns and difficulty accessing the record, the court found that the petition was late due to defendant's "inattentiveness, " since the claimed delays occurred in March and April 2008, which was after the petition was due. Regarding the substance of defendant's claims, the court found that defendant had failed to make a substantial showing of a constitutional violation and the petition could be dismissed on that basis as well.

         ¶ 10 The appellate court affirmed the dismissal, finding that the petition was untimely and that defendant was culpably negligent in filing the petition late. People v. Johnson, 2015 IL App (2d) 131029. The court also found that Judge Wilt had authority to reconsider Judge Vecchio's prior order regarding timeliness because the prior order was an interlocutory order, which can be reviewed, modified, or vacated before final judgment. Regarding timeliness, the court determined that defendant had 35 days from May 7, 2007, to file a petition for leave to appeal, which was due on June 11, 2007. Defendant then had six months from that date to file a postconviction petition, which was due on December 11, 2007. Since defendant's petition was not filed until August 2008, the court found that it was untimely. Regarding whether the late filing was due to defendant's culpable negligence, the court found that since the petition was due in December 2007, defendant's claims of delay, which occurred in 2008, could not provide a basis for excusing the late filing since they occurred after the deadline had passed. The court affirmed the dismissal of defendant's petition based on timeliness and did not address defendant's contentions with respect to the merits of his claims. Defendant now appeals.

         ¶ 11 ANALYSIS

         ¶ 12 On appeal, defendant contends that (1) section 122-1(c) of the Act does not include a time limit for filing a postconviction petition when no petition for leave to appeal is filed and, alternatively, (2) Judge Wilt erred by overruling Judge ...


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