NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 190766-U
Order filed October 13, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0766 v. ) Circuit No. 11-CF-24 ) TYSHAWN BURCH, ) Honorable ) Paul P. Gilfillan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HAUPTMAN delivered the judgment of the court. Presiding Justice O’Brien and Justice Holdridge concurred in the judgment. ___________________________________________________________________________
ORDER
¶1 Held: The circuit court properly dismissed defendant’s second-stage postconviction petition as untimely.
¶2 Defendant, Tyshawn Burch, appeals the Peoria County circuit court’s order dismissing
his second-stage postconviction petition. Defendant argues that the court erred in dismissing his
petition and that postconviction counsel provided an unreasonable level of assistance. We affirm. ¶3 I. BACKGROUND
¶4 A jury found defendant guilty of five counts of home invasion (720 ILCS 5/12-11(a)(3)
(West 2010)) and three counts of armed robbery (id. § 18-2(a)(2)). Defendant was sentenced to
30 years’ imprisonment. Defendant appealed and this court affirmed his conviction and sentence.
People v. Burch, 2014 IL App (3d) 120617-U. On September 24, 2014, the Illinois Supreme
Court denied defendant’s petition for leave to appeal.
¶5 On January 20, 2015, defendant was in court in Tazewell County for a resentencing
hearing on a separate matter. On August 3, 2015, defendant filed a postconviction petition as a
self-represented litigant in this case. On October 15, 2015, the circuit court docketed defendant’s
petition for second-stage proceedings and appointed counsel. On May 24, 2017, postconviction
counsel filed a Rule 651(c) certificate. On April 4, 2018, postconviction counsel filed an
amended postconviction petition. On July 24, 2018, the State filed a motion to dismiss arguing in
relevant part that defendant’s petition was untimely. On October 26, 2018, the court allowed
defense counsel to file a second amended petition that would address the issue of timeliness and
consolidate the petitions.
¶6 On August 9, 2019, postconviction counsel filed a second amended postconviction
petition alleging that defendant was not culpably negligent for the untimely filing of his
postconviction petition because he had an ongoing case in Tazewell County that resulted in
denying him access to materials for this case from October 9, 2014, through January 30, 2015.
On October 8, 2019, the State filed another motion to dismiss arguing defendant was only in
court for three days for the Tazewell County case, and only one of those days was during the six-
month filing window provided by the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
et seq. (West 2014)).
2 ¶7 On December 13, 2019, the court held a hearing on the State’s motion to dismiss. At the
hearing, defendant stated:
“I made like two or three trips, and one of the trips when they transferred
me down to Illinois River I was down there for like two months and some change,
and it was a delay because of the holidays. Then I went back to my home facility
and came back another trip and stayed in Illinois Correctional Center for like
three weeks until I got my final conclusion which was January 30th.
So the whole time when I came from my home facility down in Illinois
River I didn’t have no legal papers, nothing like that, and I was gone for two and
a half months.”
The court granted the State’s motion. Defendant appeals.
¶8 II. ANALYSIS
¶9 Defendant argues the circuit court erred in dismissing his postconviction petition because
he was not culpably negligent for filing his petition 36 days late, there was no forfeiture, and he
made a substantial showing of a deprivation of his constitutional rights. Alternatively, defendant
argues postconviction counsel provided an unreasonable level of assistance. We begin by
determining whether the court erred in dismissing his petition.
¶ 10 The Act provides a three-stage process wherein a prisoner may file a petition asserting his
conviction was obtained through a substantial denial of his constitutional rights. 725 ILCS 5/122-
1 (West 2014). The circuit court’s dismissal of a postconviction petition at the second stage is
reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388 (1998). “If a petition for certiorari is
not filed, no proceedings under this Article shall be commenced more than 6 months from the
date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was
3 not due to his or her culpable negligence.” 725 ILCS 5/122-1(c) (West 2014). “A petition for a
writ of certiorari seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed with the Clerk
within 90 days after entry of the order denying discretionary review.” U.S. Sup. Ct. R. 13 (eff.
July 1, 2013).
¶ 11 On September 24, 2014, our supreme court denied defendant’s petition for leave to
appeal. Defendant’s petition for a writ of certiorari was due by December 23, 2014.
Accordingly, defendant’s postconviction petition was due on June 23, 2015. Defendant filed his
postconviction petition on August 3, 2015, or 41 days late. Defendant admits his petition was
untimely but argues that he was not culpably negligent in filing his petition 36 days late because
it was entirely outside of his control when he was transferred so he could attend his Tazewell
County court proceedings. 1
¶ 12 In People v. Mitchell, 296 Ill. App. 3d 930, 934 (1998), we held that a petitioner failed to
allege facts sufficient to show a lack of culpable negligence when they asserted that they did not
have access to materials for slightly less than 3 out of 10 days during the 6-month period allowed
by section 122-1(c). Here, defendant asserts that he did not have access to his materials from
December 23, 2014, to January 30, 2015; or 39 days. There are 183 days from December 23,
2014, through the date defendant’s petition was due on June 23, 2015. Defendant did not have
access to his materials for 39 of 183 days, or only slightly more than 2 out of 10 days.
Accordingly, defendant had greater access to his materials than the defendant in Mitchell.
1 Defendant bases his calculation on the date his postconviction petition was notarized and not the filing date. 725 ILCS 5/122-1(b) (West 2014) (“The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place ***.”). 4 ¶ 13 Additionally, we are not persuaded by defendant’s argument that Mitchell is
distinguishable from this case because defendant’s petition was just over a month late whereas
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NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 190766-U
Order filed October 13, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0766 v. ) Circuit No. 11-CF-24 ) TYSHAWN BURCH, ) Honorable ) Paul P. Gilfillan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HAUPTMAN delivered the judgment of the court. Presiding Justice O’Brien and Justice Holdridge concurred in the judgment. ___________________________________________________________________________
ORDER
¶1 Held: The circuit court properly dismissed defendant’s second-stage postconviction petition as untimely.
¶2 Defendant, Tyshawn Burch, appeals the Peoria County circuit court’s order dismissing
his second-stage postconviction petition. Defendant argues that the court erred in dismissing his
petition and that postconviction counsel provided an unreasonable level of assistance. We affirm. ¶3 I. BACKGROUND
¶4 A jury found defendant guilty of five counts of home invasion (720 ILCS 5/12-11(a)(3)
(West 2010)) and three counts of armed robbery (id. § 18-2(a)(2)). Defendant was sentenced to
30 years’ imprisonment. Defendant appealed and this court affirmed his conviction and sentence.
People v. Burch, 2014 IL App (3d) 120617-U. On September 24, 2014, the Illinois Supreme
Court denied defendant’s petition for leave to appeal.
¶5 On January 20, 2015, defendant was in court in Tazewell County for a resentencing
hearing on a separate matter. On August 3, 2015, defendant filed a postconviction petition as a
self-represented litigant in this case. On October 15, 2015, the circuit court docketed defendant’s
petition for second-stage proceedings and appointed counsel. On May 24, 2017, postconviction
counsel filed a Rule 651(c) certificate. On April 4, 2018, postconviction counsel filed an
amended postconviction petition. On July 24, 2018, the State filed a motion to dismiss arguing in
relevant part that defendant’s petition was untimely. On October 26, 2018, the court allowed
defense counsel to file a second amended petition that would address the issue of timeliness and
consolidate the petitions.
¶6 On August 9, 2019, postconviction counsel filed a second amended postconviction
petition alleging that defendant was not culpably negligent for the untimely filing of his
postconviction petition because he had an ongoing case in Tazewell County that resulted in
denying him access to materials for this case from October 9, 2014, through January 30, 2015.
On October 8, 2019, the State filed another motion to dismiss arguing defendant was only in
court for three days for the Tazewell County case, and only one of those days was during the six-
month filing window provided by the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1
et seq. (West 2014)).
2 ¶7 On December 13, 2019, the court held a hearing on the State’s motion to dismiss. At the
hearing, defendant stated:
“I made like two or three trips, and one of the trips when they transferred
me down to Illinois River I was down there for like two months and some change,
and it was a delay because of the holidays. Then I went back to my home facility
and came back another trip and stayed in Illinois Correctional Center for like
three weeks until I got my final conclusion which was January 30th.
So the whole time when I came from my home facility down in Illinois
River I didn’t have no legal papers, nothing like that, and I was gone for two and
a half months.”
The court granted the State’s motion. Defendant appeals.
¶8 II. ANALYSIS
¶9 Defendant argues the circuit court erred in dismissing his postconviction petition because
he was not culpably negligent for filing his petition 36 days late, there was no forfeiture, and he
made a substantial showing of a deprivation of his constitutional rights. Alternatively, defendant
argues postconviction counsel provided an unreasonable level of assistance. We begin by
determining whether the court erred in dismissing his petition.
¶ 10 The Act provides a three-stage process wherein a prisoner may file a petition asserting his
conviction was obtained through a substantial denial of his constitutional rights. 725 ILCS 5/122-
1 (West 2014). The circuit court’s dismissal of a postconviction petition at the second stage is
reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388 (1998). “If a petition for certiorari is
not filed, no proceedings under this Article shall be commenced more than 6 months from the
date for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was
3 not due to his or her culpable negligence.” 725 ILCS 5/122-1(c) (West 2014). “A petition for a
writ of certiorari seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed with the Clerk
within 90 days after entry of the order denying discretionary review.” U.S. Sup. Ct. R. 13 (eff.
July 1, 2013).
¶ 11 On September 24, 2014, our supreme court denied defendant’s petition for leave to
appeal. Defendant’s petition for a writ of certiorari was due by December 23, 2014.
Accordingly, defendant’s postconviction petition was due on June 23, 2015. Defendant filed his
postconviction petition on August 3, 2015, or 41 days late. Defendant admits his petition was
untimely but argues that he was not culpably negligent in filing his petition 36 days late because
it was entirely outside of his control when he was transferred so he could attend his Tazewell
County court proceedings. 1
¶ 12 In People v. Mitchell, 296 Ill. App. 3d 930, 934 (1998), we held that a petitioner failed to
allege facts sufficient to show a lack of culpable negligence when they asserted that they did not
have access to materials for slightly less than 3 out of 10 days during the 6-month period allowed
by section 122-1(c). Here, defendant asserts that he did not have access to his materials from
December 23, 2014, to January 30, 2015; or 39 days. There are 183 days from December 23,
2014, through the date defendant’s petition was due on June 23, 2015. Defendant did not have
access to his materials for 39 of 183 days, or only slightly more than 2 out of 10 days.
Accordingly, defendant had greater access to his materials than the defendant in Mitchell.
1 Defendant bases his calculation on the date his postconviction petition was notarized and not the filing date. 725 ILCS 5/122-1(b) (West 2014) (“The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place ***.”). 4 ¶ 13 Additionally, we are not persuaded by defendant’s argument that Mitchell is
distinguishable from this case because defendant’s petition was just over a month late whereas
the petition in Mitchell was 7½ months late. A plain reading of section 122-1(c) indicates that a
delay of any duration after six months is prohibited under the Act. 725 ILCS 5/122-1(c) (West
2014). Thus, our analysis focuses on what transpired during the six-month period rather than
how soon after the deadline the petition was filed.
¶ 14 Defendant also relies on the Second District and First District’s holdings in People v.
Marino, 397 Ill. App. 3d 1030, 1036 (2010) and People v. Wheeler, 392 Ill. App. 3d 303, 308
(2009) requiring a third-stage evidentiary hearing in order to determine whether a petitioner has
been culpably negligent. However, these decisions are at odds with the Act as it would
incentivize petitioners to file untimely petitions to circumvent procedures established by the Act.
Moreover, our supreme court implicitly held that untimely petitions may be dismissed at the
second stage. People v. Lander, 215 Ill. 2d 577, 586-88 (2005).
¶ 15 We affirm the circuit court’s ruling that defendant’s postconviction petition was
untimely. Based on this ruling, the other issues are moot.
¶ 16 III. CONCLUSION
¶ 17 The judgment of the circuit court of Peoria County is affirmed.
¶ 18 Affirmed.