2023 IL App (1st) 221644-U No. 1-22-1644 Order filed December 29, 2023
Sixth Division 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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County, Illinois. Respondent-Appellee, ) ) No. 04 CR 06367 v. ) ) The Honorable JEROME CARSON, ) Joseph M. Claps, ) Judge, Presiding. Petitioner-Appellant. )
JUSTICE C.A. WALKER delivered the judgment of the court. Presiding Justice Oden Johnson and Justice Hyman concurred in the judgment.
ORDER
Held: We affirm the circuit court’s dismissal of petitioner’s post-conviction petition where post- conviction counsel substantially complied with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
¶1 This appeal derives from the circuit court’s dismissal of Petitioner Jerome Carson’s petition
pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) at the
second stage of proceedings. Carson argues (1) post-conviction counsel’s Rule 651(c) certificate No. 1-22-1644
failed to raise a rebuttable presumption of compliance because it is unclear whether counsel
reviewed portions of the record necessary to adequately present Carson’s claim that he lacked
culpable negligence in filing the untimely petition, and (2) even if the presumption of compliance
was established, it is rebutted by the record demonstrating post-conviction counsel’s unreasonable
assistance. For the following reasons, we affirm the circuit court’s judgment.
¶2 I. BACKGROUND
¶3 Because the facts underlying the case are set forth in People v. Carson, 2021 IL App (1st)
1190810-U, we will only detail the facts pertinent to this appeal. Carson was charged with the
offenses of attempted first-degree murder and aggravated arson at a house on the 2600 block of
West Washington Street in Chicago after he caused a house fire that resulted in injuries to one of
the victims. Pursuant to a fully negotiated plea agreement, Carson pled guilty to the charges and
was sentenced to an aggregate term of 32 years’ imprisonment on February 21, 2006. On January
30, 2013, Carson filed a petition for relief from judgment pursuant to section 2-1401(f) of the Code
of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). In October 2013, the court and the parties
addressed whether the petition for relief from judgment should be reclassified as a post-conviction
petition, and the case was continued for counsel to have further discussion with Carson on the
topic. In April 2014, post-plea counsel informed the court that Carson was withdrawing the
petition, stating:
“I have gone through this petition that he filed with – I went to State[s]ville on Monday.
We went through. We discussed some case law with regard to it. At this point, he is going
to withdraw this petition, Judge. If, in the future, he feels that there is something relevant
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that he needs to file, he can go ahead and re-file it, Your Honor can appoint us if you think
it’s pertinent. But at this point, with what he has filed, we’re withdrawing it.”
¶4 On March 9, 2015, Carson filed a pro se post-conviction petition arguing (1) his absence
from a Rule 402 conference held prior to the guilty plea hearing deprived him of due process; (2)
his conviction for aggravated arson violated the one-act, one-crime rule; and (3) he was denied
effective assistance of counsel because a plea agreement was reached during a Rule 402 conference
without his presence and consent and his guilty plea was not knowing and intelligent. The petition
advanced to the second stage of post-conviction proceedings, and the State filed a motion to
dismiss. In the motion, the State argued the petition was untimely and Carson failed to make a
substantial showing of a constitutional violation. The court granted the motion to dismiss. Carson
appealed, asserting post-conviction counsel rendered unreasonable assistance when he failed to
amend the petition to present factual allegations of Carson’s lack of culpable negligence in filing
the untimely petition. Finding counsel was unreasonable, this court reversed the circuit court’s
decision and remanded for a new second stage proceeding. People v. Carson, 2021 IL App (1st)
1190810-U.
¶5 On remand, the court appointed the public defender’s office to represent Carson. Post-
conviction counsel subsequently filed several documents. Post-conviction counsel filed a
supplemental petition for post-conviction relief on the alleged violation of the one-act, one-crime
rule. Additionally, post-conviction counsel filed a response to the State’s motion to dismiss
accompanied by Carson’s affidavit. In the affidavit, Carson averred:
“6. The untimeliness of my post-conviction petition was due to the fact that I am not a
lawyer and have not been educated in the complexities of the law.
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7. I assumed that it was my attorney’s duty to correct any mistake regarding my plea.
8. I believe that my petition is not untimely because my sentence is void under the one act
one crime rule and challenges to void judgments can be raised at any time.”
¶6 Post-conviction counsel also filed a Rule 651(c) certificate stating he (1) “consulted with
the petitioner, Jerome Carson, by phone, mail, electronic means or in person to ascertain his
contentions of deprivation of constitutional rights,” (2) “examined the record of proceedings at the
guilty plea, including the common law record, report of proceedings, and any exhibits in
possession of the Clerk of the Circuit Court,” and (3) “made amendments to the petition filed pro
se, they are necessary for an adequate presentation of petitioner’s contentions.”
¶7 The court held a hearing on the motion to dismiss. The State argued that the reasons for the
untimely filing on the petition stated in Carson’s affidavit were not “valid excuse[s]” to overcome
the timeliness provision of the Post-Conviction Hearing Act. The State further argued Carson’s
claims of a due process violation and an involuntary guilty plea were contradicted by the record
and his sentence did not violate the one-act, one-crime rule.
¶8 As to the petition’s timeliness, post-conviction counsel argued:
“Mr. Carson’s filing is not considered untimely if he can show the delay was not
due to his culpable negligence.
On March 15th, 2022, the petitioner filed an affidavit which outlines the reasons
behind the delay. Therein being that petition is not a lawyer and was not educated in the
complexities of the law. And like in most areas of the law, Mr. Carson assumed that his
attorney had the duty to correct the constitutional violation outlined in Mr. Carson’s
petition. Upon learning otherwise, Mr. Carson filed his pro se petition immediately.
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Through Mr. Carson’s research, he believed that his sentence was void under the
one-act, one crime rule, and he believes that challenges to avoid judgment can be raised at
any time.
As the Illinois Supreme Court found in People v. Boclair, the standard of culpable
negligence allows the court to determine the timeliness of the petition on an individual
basis. The Court found that the culpably negligent standard contemplates something greater
than ordinary negligence and is akin to recklessness.
In this case, Mr. Carson wasn’t being reckless, he merely was ignorant of the
process and this caused a delay in filing.”
¶9 As to the petition’s substantive claims, post-conviction counsel acknowledged that the plea
offer did not derive from a Rule 402 conference and, therefore, Carson did not suffer a due process
violation for his absence. Post-conviction counsel then argued that Carson made a substantial
showing of constitutional violations on the remaining two claims. Specifically, post-conviction
counsel claimed Carson’s convictions violated the one-act, one-crime rule because they were based
on igniting a fire on the same victim. Counsel further contended Carson’s guilty plea was not
knowing and intelligent because he was not informed of the State’s plea offer until the morning of
the hearing and was not given time to consider the offer.
¶ 10 At one point, the court inquired about Carson’s culpable negligence argument:
THE COURT: And I don’t understand your argument of the fact that he’s not
educated on the complexities of the law.
So is it your position that anybody that’s – oh, I’m sorry, and that he expected his
lawyer to raise constitutional issues.
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Did he speak to his lawyer about issues he had after the plea?
[POST-CONVICTION COUNSEL]: After the plea, your Honor?
THE COURT: Well, yeah, that’s when he says he realized that his constitutional
rights were violated. That’s what you just told me.
[POST-CONVICTION COUNSEL]: Yes, when he realized that, that’s when he
filed his post-conviction petition.
THE COURT: So, what, in 2015, it came to him?
[POST-CONVICTION COUNSEL]: Yes, your Honor.”
¶ 11 The court granted the motion to dismiss and denied the post-conviction petition on October
24, 2022. In its written order, the court made no reference to the petition’s timeliness. Instead, the
court determined the petition failed to make a substantial showing of a constitutional violation.
The court found Carson was not denied due process because no Rule 402 conference occurred and
his claim that he was not admonished under Rule 402(c) was contradicted by the record. The court
further found that it was “clear” from the indictment that the aggravated arson count was a separate
act from the attempted first-degree murder count. The court also found that Carson’s ineffective
assistance of counsel and involuntary guilty plea claims failed where the underlying allegations
lacked merit. This appeal follows.
¶ 12 II. JURISDICTION
¶ 13 On October 24, 2022, the circuit court summarily dismissed Carson’s petition at the second
stage of post-conviction proceedings. Carson filed a notice of appeal on the same day. Therefore,
we have jurisdiction over this appeal pursuant to article VI, section 6 of the Illinois Constitution
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(Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017), which
governs appeals in post-conviction proceedings.
¶ 14 III. ANALYSIS
¶ 15 On appeal from the circuit court’s denial of the post-conviction petition at the second stage,
Carson argues post-conviction counsel’s Rule 651(c) certificate failed to raise a rebuttable
presumption of compliance because it is unclear whether counsel reviewed portions of the record
necessary to adequately present Carson’s claim that he lacked culpable negligence in filing the
untimely petition. Carson further claims that even if the presumption of compliance was
established, it is rebutted by the record demonstrating post-conviction counsel’s unreasonable
assistance.
¶ 16 The Post-Conviction Hearing Act provides a mechanism by which a criminal defendant
can assert that his conviction and sentence were the result of a substantial denial of his rights under
the United States Constitution, the Illinois Constitution, or both. People v. Coleman, 183 Ill. 2d
366, 378-79 (1998) (citing 725 ILCS 5/122-1 West (1994)). The Act provides a three-stage process
for adjudicating post-conviction petitions. People v. English, 2013 IL 112890, ¶ 23. At the second
stage, the State is allowed to file either a motion to dismiss or an answer to the petition, and the
court determines whether the petitioner has made a substantial showing of a constitutional
violation. 725 ILCS 5/122-5 (West 2022); People v. Johnson, 2018 IL 122227, ¶ 15.
¶ 17 Additionally, counsel may be appointed at the second stage if the petitioner is indigent. 725
ILCS 5/122-4 (West 2022); People v. Pendleton, 223 Ill. 2d 458, 472 (2006). A petitioner has no
constitutional right to effective assistance of counsel in post-conviction proceedings. People v.
Greer, 212 Ill. 2d 192, 203 (2004). Rather, a petitioner has a statutory right to reasonable assistance
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of counsel. People v. Hardin, 217 Ill. 2d 289, 299 (2005). Statutory reasonable assistance is
something “less than that afforded by the federal or state constitutions.” Pendleton, 223 Ill. 2d at
472.
¶ 18 To ensure that individuals receive reasonable assistance, Rule 651(c) requires that post-
conviction counsel: (1) consult with petitioner either by mail or in person to ascertain his
contentions of deprivation of constitutional rights; (2) examine the record of the proceedings at the
trial; and (3) make any amendments to the petitioner’s pro se petitions that are necessary to
adequately present the petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Post-
conviction counsel establishes compliance with Rule 651(c) by filing a certificate representing that
counsel fulfilled these requirements. People v. Perkins, 229 Ill. 2d 34, 50 (2008). The certificate
creates a rebuttable presumption that counsel provided reasonable assistance during second-stage
proceedings. Id. at 52. The petitioner bears the burden of overcoming this presumption by
demonstrating “his attorney’s failure to substantially comply with the duties mandated by the Rule
651(c).” People v. Profit, 2012 IL App (1st) 101307, ¶ 19.
¶ 19 Carson first argues post-conviction counsel’s Rule 651(c) certificate failed to raise a
rebuttable presumption of compliance because it is unclear whether counsel reviewed portions of
the record necessary to adequately present Carson’s claim that he lacked culpable negligence in
filing the untimely petition. The State alleges Rule 651(c) only requires that counsel review prior
proceedings relevant to Carson’s constitutional claims, not lack of culpable negligence arguments.
¶ 20 Our supreme court held Rule 651(c) does not require post-conviction counsel to examine
the entirety of a petitioner’s trial proceedings. People v. Davis, 156 Ill. 2d 149, 164 (1993). There,
the post-conviction counsel filed a certificate of compliance wherein he averred to examining the
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record of proceedings at the trial and attached the transcript of the voir dire examination at
petitioner’s trial to the post-conviction petition. Id. at 161, 165. On appeal, the petitioner claimed
the post-conviction counsel failed to comply with Rule 651(c)’s requirement that counsel must
examine the record of proceedings because counsel only examined the transcripts of the voir dire
examination. Id. at 161. The supreme court concluded “counsel is required to examine as much of
the transcript of proceedings as is necessary to adequately present and support those constitutional
claims raised by the petitioner.” Id. at 165. Applying this principle, the court found the post-
conviction counsel substantially complied with Rule 651(c) where he reviewed and attached the
transcripts relevant to the petitioner’s claim, and the petitioner did not argue that additional
portions of the trial transcript would have supported his claim. Id. at 165.
¶ 21 Relying on Davis, the supreme court in Turner found that a post-conviction counsel’s
failure to examine transcripts for five dates during the petitioner’s sentencing proceeding did not
violate Rule 651(c). People v. Turner, 187 Ill. 2d 406, 411-12 (1999). The court explained that
post-conviction counsel is only required to examine as much of the transcript of proceedings as is
necessary to adequately present and support petitioner’s constitutional claims and the petitioner
did not allege any constitutional violations based on any matters discussed in the transcripts at
issue. Id. “To require counsel to examine portions of the record which have no relevance to
petitioner’s claims would be an exercise in futility.” Id. at 412.
¶ 22 Here, like in Davis and Turner, post-conviction counsel’s failure to examine other portions
of the record of proceedings did not violate Rule 651(c) where he examined the portions necessary
to present and support Carson’s claims. In the post-conviction petition, Carson raised three issues
surrounding his guilty plea proceeding: (1) his absence from a Rule 402 conference held prior to
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the guilty plea hearing deprived him of due process; (2) his conviction for aggravated arson
violated the one-act, one-crime rule; and (3) he was denied effective assistance of counsel because
a plea agreement was reached during a Rule 402 conference without his presence and consent and
his guilty plea was not knowing and intelligent. When the petition advanced to the second stage,
appointed post-conviction counsel filed a certificate of compliance wherein he averred that he
“examined the record of proceedings at the guilty plea, including the common law record, report
of proceedings, and any exhibits in possession of the Clerk of the Circuit Court.” Carson only
raised claims relevant to the guilty plea proceeding, and counsel reviewed the portion of the record
of proceedings necessary to adequately present and support Carson’s claims. Therefore, we find
the post-conviction counsel’s certificate raised a rebuttable presumption of compliance with Rule
651(c).
¶ 23 Next, Carson claims that even if the certificate raised a presumption of compliance with
Rule 651(c), the presumption is rebutted by the record demonstrating post-conviction counsel’s
unreasonable assistance in (1) failing to amend the petition to allege the available facts showing
the untimely petition was not the result of Carson’s culpable negligence and (2) incorrectly
informing the circuit court that Carson discovered his claims when he filed the petition in 2015.
The State claims post-conviction counsel rendered reasonable assistance because he presented the
best available argument for lack of culpable negligence. Even if counsel’s performance was
unreasonable, Carson was not prejudiced because the court granted the motion to dismiss solely
on the basis that the allegations were without merit.
¶ 24 As to Carson’s argument that post-conviction counsel failed to raise the available facts
necessary to establish lack of culpable negligence, section 122-1 of the Act provides, “If a
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defendant does not file a direct appeal, the post-conviction petition shall be filed no later than 3
years from the date of conviction, unless the petitioner alleges facts that the delay was not due to
his or her culpable negligence.” 725 ILCS 5/122-1 (West 2022). Culpable negligence
“contemplates something greater than ordinary negligence and is akin to recklessness.” People v.
Boclair, 202 Ill. 2d 89, 108 (2002).
¶ 25 Perkins is instructive on this issue. There, the court explained post-conviction counsel’s
duty to overcome section 122-1’s timeliness requirement:
“In sum, consistent with the plain language of Rule 651(c), its purpose, and our prior
decisions, we hold that Rule 651(c) requires counsel to amend an untimely pro se petition
to allege any available facts necessary to establish that the delay was not due to the
petitioner’s culpable negligence. In discharging this duty, counsel must inquire of the
petitioner whether there is any excuse for the delay in filing. As a practical matter, any
potential excuse for the late filing will often be discovered by speaking with the petitioner.
Counsel must also allege any excuse for the delay in filing apparent from the pleadings and
the portions of the record counsel must review to present petitioner’s claims.” Perkins, 229
Ill. 2d at 49-50.
¶ 26 Here, post-conviction counsel fulfilled the duty under Perkins. In the certificate of
compliance, post-conviction counsel averred that he consulted with Carson and examined the
guilty plea proceeding, the portion of the record pertinent to Carson’s claims. Post-conviction
counsel filed an affidavit wherein Carson explained (1) he was “not a lawyer and had not been
educated in the complexities of the law”; (2) he believed it was his “attorney’s duty to correct any
mistake regarding [his] plea; and (3) he believed his sentencing issue raised a challenge to a void
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judgment that could be raised at any time. Post-conviction counsel reiterated these reasons during
the hearing on the State’s motion to dismiss the petition.
¶ 27 Carson argues that available facts of his lack of culpable negligence are present in the
transcripts pertaining to the 2012 petition for relief from judgment. Specifically, after Carson filed
the petition for relief from judgment, the court and the parties discussed whether to reclassify the
petition for relief from judgment as a post-conviction petition. A few months later, Carson’s post-
plea counsel informed the court that Carson was withdrawing the petition:
“I have gone through this petition that he filed with – I went to State[s]ville on
Monday. We went through. We discussed some case law with regard to it. At this point, he
is going to withdraw this petition, Judge. If, in the future, he feels that there is something
relevant that he needs to file, he can go ahead and re-file, Your Honor can appoint us if you
think it’s pertinent. But at this point, with what he has filed, we’re withdrawing it.”
¶ 28 We find Carson’s argument unpersuasive. As previously stated, Rule 651(c) did not require
post-conviction counsel to examine the transcripts regarding the 2012 petition for relief from
judgment where Carson did not raise any claims pertinent to that proceeding. See Turner, 187 Ill.
2d at 411-12 (“Rule 651(c) requires post-conviction counsel only to examine as much of the
transcript of proceedings as is necessary to adequately present and support those constitutional
claims raised by the petitioner.” (Internal quotation marks omitted.)). Furthermore, Carson failed
to explain how the withdrawal of his petition from relief from judgment showed he lacked culpable
negligence in filing the post-conviction petition. Indeed, Carson did not raise any claims until he
filed the petition for relief from judgment six years after he pled guilty and three years after the
statutory limitation for filing a post-conviction petition had expired. Even if we believe Carson did
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not discover his claims until he filed the petition for relief from judgment in 2015, post-plea
counsel’s statement still does not explain why Carson waited another two years to file the post-
conviction petition. Our reading of counsel’s statement reveals Carson made a conscious decision
to forgo reclassification and withdraw the petition from relief from judgment after consulting with
counsel indicating his contribution in delaying the filing of the post-conviction petition. We
unfortunately do not have any information on the conversation between Carson and post-plea
counsel to get a better understanding of the advice that influenced Carson’s decision.
Consequently, we do not see how post-conviction counsel failed to present available facts of
Carson’s lack of culpable negligence from the portion of the 2012 petition for relief from judgment.
¶ 29 Additionally, Carson contends that counsel rendered unreasonable assistance because he
incorrectly informed the court that Carson discovered his claims when he filed his post-conviction
petition in 2015 although Carson previously raised the one-act, one-crime issue in his 2012 petition
for relief from judgment. Even so, counsel’s alleged misstatement does not render his assistance
unreasonable.
¶ 30 Our supreme court’s decision in People v. Cotto, 2016 IL 119006, provides guidance.
There, the petitioner filed a post-conviction petition that advanced to the second stage proceeding.
Id. ¶¶ 9-11. At the second stage, the State filed a motion to dismiss arguing, inter alia, the petition
was untimely filed. Id. ¶ 12. The post-conviction counsel filed a response asserting the petitioner’s
reason for the untimeliness. Id. ¶ 13. The post-conviction court granted the State’s motion to
dismiss without reference to timeliness. Id. ¶ 14. On appeal, the petitioner argued that post-
conviction counsel rendered unreasonable assistance because he failed to provide an adequate
explanation for the filing of his untimely petition. Id. ¶ 44. The supreme court held the petitioner
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failed to demonstrate post-conviction counsel provided unreasonable assistance where (1) the
petitioner did not provide any additional information that counsel should have included on the
timeliness issue; (2) the petitioner did not state when counsel was retained in relation to filing the
petition; and (3) the record demonstrated that the petition was not dismissed based on untimeliness.
Id. ¶ 50.
¶ 31 Similarly, we find counsel fulfilled his duties under Rule 651(c) despite his alleged
misstatement. Rule 651(c) requires that counsel present any available facts necessary to establish
Carson’s lack of culpable negligence in filing the untimely petition. The record shows post-
conviction counsel filed an affidavit detailing various reasons for the delay and reiterated these
reasons at the hearing on the State’s motion to dismiss the petition. Carson failed to present any
additional reasons evinced in the record that counsel should have raised before the court. Notably,
the court reviewed the merits of the post-conviction petition and did not reference the late filing in
its reasons for dismissing the petition. This fact speaks to the viability of counsel’s arguments for
bypassing section 122-1’s timeliness requirement. Under these circumstances, we find Carson
failed to rebut the presumption of compliance. As such, we hold post-conviction counsel
substantially complied with Rule 651(c).
¶ 32 IV. CONCLUSION
¶ 33 We find post-conviction counsel created a rebuttable presumption of compliance with Rule
651(c) and Carson’s arguments of counsel’s unreasonable assistance failed to rebut the
presumption. Therefore, we hold post-conviction counsel substantially complied with Rule 651(c).
Accordingly, we affirm the circuit court’s dismissal of the post-conviction petition.
¶ 34 Affirmed.
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