No. 2--05--1115 Filed: 1-17-08 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 97--CF--643 ) RONNIE L. DAVIS, ) Honorable ) John T. Phillips, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE CALLUM delivered the opinion of the court:
Defendant, Ronnie L. Davis, appeals the trial court's second-stage dismissal of his petition,
filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2002)), in
which he argued, inter alia, that his trial counsel was ineffective for failing to bring forward what he
claims was potentially exculpatory testimony from a witness to the incident that led to defendant's
conviction. For the reasons that follow, we affirm.
I. BACKGROUND
Defendant was convicted of unlawful possession of a controlled substance and armed
violence in connection with an incident in 1997, in which police entered a home in pursuit of a
fleeing suspect and discovered defendant with drugs and a handgun in his possession. Defendant
appealed, and this court affirmed his conviction, but remanded the cause for resentencing. People
v. Davis, No. 2--97--1096 (1999) (unpublished order under Supreme Court Rule 23). Defendant's No. 2--05--1115
sentence was reduced on remand, and he again appealed. On appeal, this court affirmed his 24-year
sentence for armed violence, but vacated the conviction of unlawful possession of a controlled
substance. People v. Davis, No. 2--99--1247 (2001) (unpublished order under Supreme Court Rule
23). On October 2, 2002, our supreme court denied defendant's subsequent petition for leave to
appeal. People v. Davis, 201 Ill. 2d 583 (2002).
On November 3, 2003, defendant petitioned pro se for postconviction relief under the Act.
The trial court appointed counsel to represent defendant, and, on February 18, 2005, counsel filed
supplements to the petition. The supplemented petition alleged, among other things, that defendant
had been deprived of his right to effective assistance of counsel by his trial counsel's failure to
interview, or call to testify, a witness who would have offered testimony that aided his case.
Defendant knew of the witness's presence at the scene, but he did not obtain her affidavit until
February 2005.
The affidavit stated, in pertinent part:
"I *** state that myself and [defendant] were at my grandmother's house ***.
Sometime during that time in the afternoon the police arrived at my grandmother[']s house
and proceeded inside very quickly and saying [sic] that someone that they were chasing ran
into our house. *** We told them no one had ran [sic] into our house and asked them to
leave. They then turned they're [sic] attention to [defendant] and asked him to take his hands
out of his pocket [sic][.] We asked them to leave once more and they continued to tell
[defendant] to take his hands out of his pocket [sic][.] [H]e wouldn't and they immediately
restrained him, and hit him then arresting [sic] him and taking [sic] him away. Before they
took him there was a *** silver gun on the floor of the kitchen[.] I picked it up, the police
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grabbed me and my arm and took the gun away from me. I then told them I was picking it
up for everyone[']s safety and I never saw that gun again. I can verify that [defendant] had
never left the house since we arrived two or three hours earlier. No one ever contacted me
for a statement and I was never called to testify during [defendant's] trial. I never saw
[defendant] with the gun. I don't know where the gun came from and I had never seen it
before."
Defendant's original petition asserted that any delay in filing the petition was not due to his
culpable negligence, because defendant had only recently learned that no charges were filed against
the suspect whom police pursued into the house where they encountered defendant.
The State moved to dismiss defendant's postconviction petition on the grounds that the
petition was untimely, that it made no substantial showing of a constitutional violation, that the
allegations in the petition had been waived for failure to raise them in the direct appeal of defendant's
conviction, and that the petition did not properly cite the Act. Defendant's reply to the State's
motion to dismiss argued that the delay in his filing his postconviction petition was not due to his
culpable negligence, because the prison library had been closed during the relevant time period.
Defendant filed an affidavit saying that he had no access to the library for the first year of his
incarceration; however, the State responded with an affidavit from a prison librarian refuting this
claim.
On October 27, 2005, the trial court held a hearing on the State's motion to dismiss. At the
hearing, defendant testified on his own behalf. He explained that he did not file his petition within
the time limit under the Act because he "thought that [he] had three years to file," and he noted that
he did not have legal counsel at the time. At the conclusion of defendant's testimony, the court heard
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arguments from both sides. The State argued that the petition was untimely, that it failed to make
a substantial showing of a constitutional violation, and that defendant's arguments were barred by
waiver. Defense counsel responded to the timeliness argument by conceding that defendant's
petition was not timely, but asked the trial court to allow the petition to proceed "based on the nature
of the petition and in the interest of justice."
The trial court granted the State's motion to dismiss defendant's postconviction petition. It
stated in open court that, "after considering [the] State's argument, the Court would find [the State's
motion to dismiss] to be valid in two respects, and, that is, certainly that the petition is time barred."
The trial court continued:
"Even with the amendment that was made it does not get beyond the Defendant's
culpable negligence. The fact that he's alleging here today that he thought that it was three
years after that he had is not an excuse to get beyond that culpable negligence so it was not
timely filed."
The trial court also agreed with the State that defendant's argument concerning the new witness had
been waived for failure to assert it on direct appeal.
In its written order, the trial court stated that the petition was "untimely filed due to
[defendant's] own culpable negligence and barred by doctrine [sic] of waiver." Defendant timely
appealed.
II. APPELLATE DEFENDER'S ADVOCACY
Initially, we address the quality of representation provided defendant in this appeal because,
in this and another recent case, People v. Teran, 376 Ill. App. 3d 1 (2007), this court has been
presented with highly questionable advocacy from appointed appellate counsel from the Third
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District State Appellate Defender's Office. In Teran, appellate counsel twice moved to reconsider
our denial of his motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95
L. Ed. 2d 539, 107 S. Ct. 1990 (1987), and, in those motions, he asserted that he was not "tempted"
to make an argument that this court identified for him as nonfrivolous, in part because his client was
"delusional." Teran, 376 Ill. App. 3d at 5. We admonished counsel in Teran for his "remarkable"
position. Teran, 376 Ill. App. 3d at 5. This appeal raises a very similar problem.
Defendant's appointed attorney for this appeal, Jay Wiegman of the Third District Office of
the State Appellate Defender, filed a Finley motion because he could not identify any nonfrivolous
issues to raise on appeal. In his motion, Wiegman asserted that defendant's postconviction petition
was untimely and that there was no viable excuse for the delay. The motion discussed only the
timeliness issue.
We denied Wiegman's motion to withdraw and directed him to file a brief addressing
postconviction counsel's assistance. Wiegman subsequently filed a motion to reconsider our denial
of his motion for leave to withdraw. In that motion and an accompanying memorandum, Wiegman
argued that postconviction counsel did not provide unreasonable assistance under the Act or
Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). Specifically, Wiegman noted that postconviction
counsel based his timeliness argument on defendant's mistake of law only after the State had refuted
defendant's contention that he had no library access. Wiegman also rebutted the contention that
postconviction counsel should have argued that the witness affidavit could have been considered
newly discovered evidence. He noted that such argument was unnecessary and, in any event, "the
trial court disregarded any timeliness concerns involving this issue, finding instead that [defendant's
claim] was waived." Wiegman also asserted that postconviction counsel did not violate Rule 651(c)
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or the Act by failing to argue that counsel on direct appeal was ineffective for not raising an
argument regarding the new witness. Instead, Wiegman argued that counsel on direct appeal could
not have argued the new-witness issue, because the record on appeal did not reveal that issue, and,
therefore, counsel on direct appeal could not be considered ineffective.
We denied Wiegman's motion to reconsider. We noted that, if "counsel on direct appeal
could not have raised the supplemental claim, the trial court erred in dismissing that claim on the
basis of waiver." We thus ordered Wiegman "to file a brief addressing whether, at least as to
defendant's [argument regarding the new witness,] the trial court erred in dismissing defendant's
petition." Wiegman subsequently filed an appellate brief, the State responded, and Wiegman replied.
Initially, the lone argument Wiegman presented on appeal was his argument that the trial
court erred in ruling that defendant's claim regarding the new witness was barred by the doctrine of
waiver. Once Wiegman briefed the issue of waiver, the State readily conceded the point because the
evidentiary basis for defendant's claim was not contained in the record on direct appeal and, thus,
could not have been raised on appeal. See People v. Jones, 364 Ill. App. 3d 1, 5 (2005) ("[w]hen the
evidentiary basis for a claim raised in a postconviction petition lies outside the record such that the
issue cannot be raised before the reviewing court, the waiver rule may be relaxed, allowing the claim
to be presented in a postconviction petition").
Though the State conceded that waiver was an inappropriate basis for dismissing defendant's
petition, it raised two additional arguments to support the trial court's decision. First, the State
argued that defendant's postconviction petition did not make the necessary showing of a
constitutional violation, because the new witness's proposed testimony would not have changed the
outcome of the trial (or the pretrial motion to suppress). See People v. Whitfield, 217 Ill. 2d 177,
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183 (2005). Wiegman ignored this argument in his initial reply brief. (He also did not address it in
either his original Finley motion or his motion for reconsideration.) Second, the State argued that
the trial court properly dismissed defendant's petition as untimely under the Act. Wiegman asserted
that "[t]he record reveals *** that the State did not argue that the supplemental claim was untimely,
and that the trial court did not find this issue untimely" and that "the trial court disregarded any
timeliness concerns involving this issue, finding instead that it was waived."
These arguments were patently at odds with the record. We quoted the trial court's ruling
above; that ruling could not more plainly invoke untimeliness due to culpable negligence as a bar
to defendant's postconviction petition. Further, the ruling makes no distinction between the new-
witness issue, which was added via postconviction counsel's supplement to the pro se petition, and
the remainder of the petition. Indeed, neither the State nor postconviction defense counsel, nor the
trial court for that matter, drew any distinction for timeliness purposes between the new-witness
claim and defendant's other claims. Further, even if it were true that the trial court disregarded the
timeliness issue, we would still consider it because we may affirm the trial court's dismissal of a
petition on any basis shown by the record, even if that basis was rejected by the trial court. People
v. Ramirez, 361 Ill. App. 3d 450, 452 (2005), citing People v. Johnson, 208 Ill. 2d 118, 128-38
(2003).
Accordingly, after initial briefing, the quality of Wiegman's representation in this matter left
us with grave concerns as to whether defendant had received a fair and meaningful appeal. For
example, Wiegman overlooked nonfrivolous arguments when he filed his initial motion to withdraw.
In addition, after we denied his motion to withdraw, Wiegman filed a motion to reconsider, not
asserting that we made a mistake of law, but, instead, refuting the issues we raised for him in our
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denial. Further, the motion to reconsider inexplicably overlooked an obvious problem with the trial
court's waiver holding. Wiegman's actual briefing ignored substantial arguments made by the State.
Wiegman's brief, and his motion to reconsider, contained the spurious assertion that timeliness was
not an issue when the trial court dismissed defendant's petition, even though that assertion ostensibly
hurt defendant's case.
What strikes us most about this last mistake is that Wiegman made his assertion as part of
an argument against his client. The very rationale for motions to withdraw is that attorneys must not
be forced to choose between two ethical duties--their duty to zealously advocate for their clients, and
their duty of candor to the court--when those duties conflict. See Anders v. California, 386 U.S. 738,
744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 1400 (1967) ("[h]is role as advocate requires that he
support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly
frivolous, after a conscientious examination of it, he should so advise the court and request
permission to withdraw"); People v. Greer, 212 Ill. 2d 192, 205 (2004) (postconviction counsel has
an ethical duty not to file frivolous claims). Thus, where an attorney cannot in good faith present
an argument on behalf of his or her client, the attorney may withdraw.
Here, Wiegman made inconsistent and inaccurate statements that were against his client's
interests in an attempt to be discharged from defendant's case. The fact that Wiegman interpreted
the trial court's ruling as he did, when an opposite interpretation was almost unavoidable, gives us
the impression that his pursuit was not vindication of his client's interests but, rather, vindication of
his interest to be discharged from the case (and, consequently, to have the judgment affirmed). His
failure to spot the obvious exception to the waiver rule leaves us with similar doubts. Moreover,
Wiegman's failure to respond in his initial reply brief to the State's alternative argument for
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affirmance--its assertion that defendant's petition does not establish a constitutional
deprivation--further reflects Wiegman's disinterest in zealously pursuing defendant's interests here.
Even if the State's argument were correct, Wiegman at no point indicated to us that opposition to the
argument would be frivolous or that he had even considered the argument.
Thus, because questions remained after Wiegman's briefing, regarding arguments that he
never raised, we ordered Wiegman to address whether postconviction counsel violated Rule 651(c)
by failing to avoid waiver and by offering what amounted to an ineffective "mistake of law" excuse
for untimeliness when there appeared to be a more feasible argument of newly discovered evidence.
We also convened oral argument so that we could fully air our concerns to the parties. After oral
argument, we granted defendant leave to file a supplemental brief and the State leave to respond.
Both briefs were filed, but Wiegman did not file, or request leave to file, a reply brief, even though
the State's brief raised arguments not addressed in Wiegman's supplemental brief. We nevertheless
sua sponte granted Wiegman leave to file a reply brief, and he did so.
After reviewing the supplemental briefs, we are now satisfied that defendant has received
reasonable assistance from appellate counsel. However, the events here prompt us to observe that
all parties in every action have a right to a fair appeal, and it is fundamental to our adversarial
process that those appeals be decided with the advice of zealous advocates of both positions. An
appellate defense counsel is charged with one principal object: ensuring that the defendant receives
a fair appeal. It is only in the most dire circumstances, and with considerable regret, that an
appointed attorney should ask to withdraw his or her representation by filing a memorandum
outlining the weakness of a client's case. An attorney who files a Finley or Anders motion without
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exploring every conceivable argument for a defendant, including nonfrivolous arguments even with
little chance of success, disappoints not only the defendant, but also the justice system as a whole.
Counsel's actions here, combined with the actions of another Third District appellate defender
in Teran, have raised concerns regarding the quality of representation from that office. We therefore
take this opportunity to encourage both bench and bar to exercise diligence to ensure that all parties
receive the fairest possible appeals. We also caution that we view Anders and Finley motions as
decisions of last resort for defense counsel who cannot, in good faith, represent their clients. Any
notion that such a motion has been filed with an eye more toward personal expedience than good
faith will be met with disfavor.
III. THE MERITS OF THIS APPEAL
Now that we have received full briefing in this case and had an opportunity to review the
briefs submitted, we are satisfied that defendant has, in the end, received representation sufficient
to provide him a fair appeal. We therefore consider his appeal on its merits.
On appeal, defendant argues that the trial court erred in dismissing his supplemental claim
on the basis of waiver and that postconviction counsel violated Rule 651(c) by failing to provide a
reasonable level of assistance.
A. Waiver
The Act provides a remedy for defendants who have suffered a substantial violation of their
constitutional rights at trial. People v. Edwards, 197 Ill. 2d 239, 244 (2001). Thus, "[t]o be entitled
to postconviction relief, a defendant must demonstrate that he [or she] has suffered a substantial
deprivation of his [or her] federal or state constitutional rights in the proceedings that produced the
conviction or sentence being challenged." Whitfield, 217 Ill. 2d at 183. "Under the Act, a
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post[]conviction proceeding not involving the death penalty contains three stages." Edwards, 197
Ill. 2d at 244. "At the first stage, the circuit court must independently review the post[]conviction
petition within 90 days of its filing and determine whether 'the petition [should be dismissed because
it] is frivolous or is patently without merit.' " Edwards, 197 Ill. 2d at 244, quoting 725 ILCS
5/122--2.1(a)(2) (West 1998). To survive the first stage, a petition need state only the gist of a
constitutional claim. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). A petition also survives the
first stage if the trial court fails to make a finding that it is frivolous within 90 days, as required under
section 122--2.1 of the Act. People v. Vasquez, 307 Ill. App. 3d 670, 672-73 (1999).
If the petition survives the first stage, the defendant moves on to the second stage under the
Act, at which the defendant may be appointed counsel. Greer, 212 Ill. 2d at 203-04. This right to
postconviction counsel is statutory, not constitutional, and, under the Act, the petitioner is entitled
only to a reasonable level of assistance. People v. Pendleton, 223 Ill. 2d 458, 472 (2006). Such
reasonable assistance includes compliance with the obligations of Rule 651(c). At the second stage,
defendant's counsel may file an amended postconviction petition and the State may file a motion to
dismiss or an answer to the petition. Gaultney, 174 Ill. 2d at 418, citing 725 ILCS 5/122--5 (West
1992). If the trial court does not dismiss or deny the petition, the proceeding advances to the third
and final stage, at which the trial court conducts an evidentiary hearing on the defendant's petition.
Gaultney, 174 Ill. 2d at 418. The petition here was dismissed at the second stage.
One basis for the trial court's second-stage dismissal of defendant's petition was its
conclusion that defendant had waived the issues raised in his petition for failure to raise them on
direct appeal. However, defendant notes, and the State concedes, that, since the evidentiary basis
for defendant's new-witness claim was not contained in the record on direct appeal, the claim could
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not have been raised on appeal and, thus, the waiver finding was improper. See Jones, 364 Ill. App.
3d at 5.
Though the State concedes that waiver was an inappropriate basis for dismissing defendant's
petition, it raises two additional arguments to support the trial court's decision. We may affirm the
trial court's dismissal of a petition on any basis shown by the record, even if that basis was rejected
by the trial court. Ramirez, 361 Ill. App. 3d at 452, citing Johnson, 208 Ill. 2d at 128-38. We
therefore consider the additional bases argued by the State.
First, the State argues that defendant's petition does not make the substantial showing of a
constitutional violation necessary to sustain a postconviction claim. See Whitfield, 217 Ill. 2d at
183. The State notes that defendant alleges in his petition that the failure to call the new witness to
testify deprived him of his constitutional right to effective assistance of counsel at trial. A defendant
making a claim of ineffective assistance of counsel must show both that his counsel's performance
fell below an objective standard of reasonableness and that there is a reasonable probability that, but
for counsel's errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill.
2d 504, 525 (1984). According to the State, any unreasonable assistance here was not prejudicial,
because the new witness's proposed testimony would not have changed the outcome of the trial (or
the pretrial motion to suppress). The affidavit's statement that the occupants of the home asked
police to leave does not undermine the original trial court's ruling that police were entitled to enter
because they were in hot pursuit of a suspect. The affiant's statement that defendant had been in the
home for several hours and that she had not seen the handgun did not conflict with the testimony that
police saw defendant trying to conceal drugs and that defendant was carrying a concealed handgun.
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Defendant does not respond to this argument and, thus, concedes it. Further, we agree with the State
that the witness's proposed testimony would not have changed the outcome of the trial or the motion
to suppress and, thus, defendant failed to make a substantial showing of a constitutional violation.
Second, the State argues that the trial court properly dismissed defendant's petition as
untimely under the Act. Section 122--1(c) of the Act provides that no postconviction petition may
be filed more than six months after the denial of a petition for leave to appeal, or three years from
the date of conviction, whichever is sooner, "unless the petitioner alleges facts showing that the delay
was not due to his or her culpable negligence." 725 ILCS 5/122--1(c) (West 2002). "The phrase
'culpable negligence' contemplates something greater than ordinary negligence and is akin to
recklessness. [Citations.] A trial court's findings of fact regarding whether a petition's untimeliness
was due to culpable negligence will not be reversed unless manifestly erroneous [citation], but [a
challenge to] the trial court's ultimate conclusion as to whether the established facts demonstrate
culpable negligence is reviewed de novo." Ramirez, 361 Ill. App. 3d at 452. Here, the parties agree
that defendant's petition was filed more than six months after the supreme court denied his petition
for leave to appeal and, thus, was untimely under the Act. The only question, then, is whether the
late filing was due to defendant's culpable negligence. Defendant's only response to this question
is that the trial court did not actually rely on untimeliness in dismissing his petition. We refuted this
interpretation of the record above. Further, we conclude that the trial court's rejection of defendant's
mistake-of-law argument and its finding that defendant was culpably negligent were correct, and,
thus, the trial court did not err in dismissing defendant's petition as untimely.
In summary, based on the above, we accept both of the State's alternative bases for upholding
the trial court's dismissal of defendant's postconviction petition. Therefore, though defendant is
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correct that the trial court erred in invoking waiver as a bar to defendant's claim, we agree with the
State that we may not reverse the trial court's decision on that basis.
B. Reasonable Level of Assistance
Defendant's second argument on appeal is that we must reverse because he did not receive
the level of assistance mandated by Rule 651(c) and the Act for postconviction counsel. A
defendant's right to counsel after the first stage of postconviction proceedings is purely statutory
rather than constitutional, and, under the Act, a defendant is entitled only to a "reasonable" level of
assistance. Greer, 212 Ill. 2d at 204. "Reasonable assistance" includes compliance with the specific
obligations of Rule 651(c), which requires, among other things, that postconviction counsel make
" 'any amendments to the petitions filed pro se that are necessary for an adequate presentation of
petitioner's contentions.' " People v. Turner, 187 Ill. 2d 406, 412 (1999), quoting 134 Ill. 2d R.
651(c). However, the statutory requirement of reasonable assistance does not " 'guarantee that
[defendants] will receive the same level of assistance that the Constitution guarantees to defendants
at trial.' " Greer, 212 Ill. 2d at 204, quoting People v. Owens, 139 Ill. 2d 351, 364 (1990).
In order to adequately present a defendant's postconviction claims and, thus, provide the
requisite level of assistance, postconviction counsel must "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." People v. Perkins, No. 103693, slip op. at 11 (November 29, 2007). This effort
includes inquiring of the petitioner whether there is any excuse for the delay and an examination of
the record. Perkins, slip op. at 11-12.
Here, as noted, defendant's postconviction petition was not timely filed. Postconviction
counsel amended defendant's petition to allege that his prison library had been closed and, thus, that
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his failure to timely file his postconviction petition was not due to his culpable negligence. The State
responded with an affidavit from a prison official indicating that the library had not, in fact, been
closed. Postconviction counsel did not further amend the petition, but, instead, elicited new
testimony from defendant at the hearing on the State's motion to dismiss. At the hearing, defendant
testified that he misunderstood the statutory deadline for his petition. We consider this testimony
an additional amendment to defendant's postconviction petition to be governed by Rule 651(c), even
though postconviction counsel did not submit the amendment in written form.
On appeal, defendant argues that postconviction counsel did not provide reasonable
assistance, because he made the above arguments to overcome the untimeliness of defendant's
petition when he could have made a potentially stronger argument. Defendant notes that the
mistake-of-law defense proffered by postconviction counsel has been rejected by this court (see
People v. Hampton, 349 Ill. App. 3d 824, 829 (2004)), and he argues that counsel could have
asserted that the affidavit upon which defendant's petition was based was new evidence discovered
after the statutory filing deadline such that defendant could not have presented his petition (and
supporting affidavit) until after the deadline.
Defendant is correct that newly discovered evidence of innocence may excuse a defendant's
failure to timely file a postconviction petition. See People v. Morgan, 212 Ill. 2d 148, 154 (2004).
The State offers two reasons why defendant's late filing should not be excused on the ground that
he did not obtain the affidavit until after the filing deadline.
First, the State notes that "evidence is not 'newly discovered' when it presents facts already
known to the defendant at or prior to trial, though the source of those facts may have been unknown,
unavailable, or uncooperative." People v. Barnslater, 373 Ill. App. 3d 512, 523 (2007). Defendant
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does not challenge this statement of the law. The affidavit here was executed by an eyewitness to
defendant's arrest. Defendant argues that nothing in the record establishes that the affidavit was not
newly discovered evidence, because even if defendant was aware of the affiant's presence at the time
of his arrest, he did not know what she saw or what her testimony might be. However, the affidavit,
which describes only the affiant's observations of defendant's encounter with police, does not contain
any facts that defendant would not have known at or prior to his trial. During his trial and during
the period in which he could have timely filed a postconviction petition, defendant was aware of the
affiant's presence at the arrest scene. Thus, the fact that defendant did not obtain the affidavit until
after the expiration of time for filing a petition does not render the evidence "newly discovered" so
that defendant's violation of the deadline may be excused.
Second, the State argues that, even if the affidavit were "newly discovered," it was not
evidence that was material to defendant's case. Defendant does not challenge the State's assertion
that materiality is a requirement for newly discovered evidence to excuse a late filing. The affidavit
asserts, in pertinent part, that police entered the home without permission, that defendant failed to
comply with police orders to remove his hands from his pockets, and that a handgun appeared on
the floor after police physically confronted defendant. As the State notes, the alleged fact that police
entered without permission was immaterial because the trial court held that, even if police did not
have permission to enter the house, they could have entered it because they were in hot pursuit of
a fleeing suspect. The State further notes that the remainder of the affidavit does not contradict, but
actually corroborates, police testimony that defendant had his hands in his pockets and that there was
a gun. Defendant's only response to these arguments on appeal is that the affidavit must be material
because it contradicts the testimony of the State's witnesses. However, defendant offers no point on
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which the affidavit and the testimony conflict. Thus, he concedes the point. In sum, we agree with
the State that the affidavit cannot be considered newly discovered evidence that excuses defendant's
untimely filing of his petition, both because the affidavit was not "newly discovered" and because
its contents were not material.
However, the question presented here is not whether postconviction counsel could have
presented an alternative argument that would have succeeded. Indeed, a defendant need not
demonstrate prejudice in order to succeed on a claim that postconviction counsel violated Rule
651(c). People v. Lander, 215 Ill. 2d 577, 585 (2005). The question is whether the arguments
actually put forth by postconviction counsel were so weak that they demonstrate counsel's
unreasonable assistance. We hold that they do not.
Though postconviction counsel overlooked the above argument, he nevertheless made
substantive amendments to defendant's petition in an effort to ensure that his claims would be
adequately presented. Defendant's initial petition alleged that his delay in filing was caused by the
fact that he had only recently received information regarding a witness's arrest record. However, the
documents attached to his petition refuted this claim. Postconviction counsel amended defendant's
petition to add the assertion (supported by defendant's affidavit) that he did not have access to the
prison library in order to work on his petition. This was a potentially viable argument. See People
v. Cortez, 338 Ill. App. 3d 122, 131 (2003) ("[t]his court has held that *** the total denial of access
to the prison law library during a lockdown may sometimes excuse a late filing"). When the State
filed an affidavit from a prison official refuting the factual basis for that argument, postconviction
counsel resorted to the mistake-of-law defense and also pleaded with the court to overlook the
untimeliness issue "in the interest of justice." Counsel's initial amendment presented a plausible
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argument, and, though his contingency mistake-of-law argument was not plausible and his appeal
to the "interest of justice" not effective, the record demonstrates that "[c]ounsel's argument was
apparently the best option available based on the facts." Perkins, slip op. at 13. Especially given the
lower standard for representation under the Act versus under the Constitution, we do not think the
arguments pressed by postconviction counsel demonstrate an unfamiliarity with the law such that
his representation did not meet the Act's standards for reasonableness.
For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
Affirmed.
McLAREN and O'MALLEY, JJ., concur.
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