People v. Hall

2020 IL App (4th) 180790-U

Opinion

NOTICE FILED This order was filed under Supreme 2020 IL App (4th) 180790-U Court Rule 23 and may not be cited September 3, 2020 as precedent by any party except in Carla Bender NO. 4-18-0790 the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Coles County WILLIE J. HALL, ) No. 11CF448 Defendant-Appellant. ) ) Honorable ) Mitchell Kevin Shick, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Presiding Justice Steigmann and Justice Holder White concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err by dismissing defendant’s postconviction petition at the second stage of the postconviction proceedings.

¶2 In January 2017, defendant, Willie J. Hall, filed pro se a petition under the

Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 et seq. (West 2016)),

raising several claims. In February 2017, the Coles County circuit court advanced defendant’s

petition to the second stage of the proceedings. Defendant filed a supplemental postconviction

petition, and the State filed a motion to dismiss. After a November 2018 hearing, the court

granted the State’s motion to dismiss.

¶3 Defendant appeals, asserting the circuit court erred by granting the State’s motion

to dismiss his postconviction petition. We affirm.

¶4 I. BACKGROUND ¶5 In October 2011, the State charged defendant by information with one count of

home invasion (count I) (720 ILCS 5/12-11(a)(2) (West 2010) (text of section effective July 1,

2011)), one count of robbery (count II) (720 ILCS 5/18-1(a) (West 2010)), and one count of

residential burglary (count III) (720 ILCS 5/19-3(a) (West 2010)). Count I alleged defendant

committed the offense of home invasion when he, not acting as a peace officer in the line of

duty, knowingly and without authority entered the dwelling place of Donald and Lily Griffin and

intentionally caused injury to Donald by striking him about his head and body with his fists and

hands. Count II alleged defendant committed the offense of robbery when he knowingly took

property, being United States currency, a rifle, and a watch, from Donald and Lily by the use of

force. Count III alleged defendant committed the offense of residential burglary when he

knowingly and without authority entered the dwelling place of Donald and Lily with the intent to

commit therein a theft. Jose Morrison, Devin Aikens, and Jermaine Bunch were also charged in

connection with the October 15, 2011, incident at Donald and Lily’s home.

¶6 In October 2012, defendant’s jury trial commenced but ended in a mistrial when

the jury was unable to reach a verdict. Following the mistrial, the other three codefendants all

entered into negotiated plea agreements to various charges, but defendant sought another jury

trial. In May 2013, defendant’s second jury trial began. Defendant’s three codefendants all

testified on behalf of the State. Following closing arguments, the jury found defendant guilty of

all three charges. The jury also found the State proved the allegation the offenses were

committed against a person 60 years of age or older.

¶7 In July 2013, the circuit court sentenced defendant to consecutive prison terms of

30 years for home invasion, 6 years for robbery, and 6 years for residential burglary. In August

2013, defendant filed a motion to reconsider his sentence, which the court denied.

-2- ¶8 Defendant appealed and argued (1) he was deprived of a fair trial, (2) he was

denied the effective assistance of counsel, and (3) his conviction for residential burglary must be

vacated based on the one-act, one-crime rule. This court affirmed defendant’s convictions and

sentences but declined to address defendant’s claim of ineffective assistance of counsel due to an

insufficient record. People v. Hall, 2015 IL App (4th) 130780-U. Defendant filed a petition for

leave to appeal to the supreme court, which was denied. People v. Hall, No. 120306 (Ill. Mar.

30, 2016) (supervisory order).

¶9 In January 2017, defendant filed pro se his postconviction petition in which he

asserted (1) he was denied a fair trial because the circuit court prevented him from presenting a

complete defense by restricting his cross-examination and impeachment of a testifying

codefendant regarding his mental health issues; (2) he was denied his right to effective assistance

of counsel because counsel (a) allowed the State to improperly bolster the credibility of its

witnesses through inadmissible prior consistent statements, (b) failed to impeach defendant’s

codefendants regarding the favorable sentences they received as part of their plea agreements,

and (c) “permitting the State to front the impeachment of its own witnesses’ prior convictions

through the ‘mere fact’ method, and not further impeaching them based on their prior

convictions”; and (3) his conviction and sentence for residential burglary must be vacated under

the one-act, one-crime rule. In the June 2018 supplemental petition, postconviction counsel

incorporated all the allegations in defendant’s pro se petition and asserted defendant received

ineffective assistance of counsel because counsel failed to properly preserve any issue for appeal.

¶ 10 In August 2018, the State filed a motion to dismiss defendant’s postconviction

petition and its supplement. The State argued defendant’s (1) postconviction petition was

untimely filed, (2) first and third claims in the petition were barred by the doctrine of

-3- res judicata, and (3) ineffective assistance of counsel claims were frivolous and without merit.

On November 30, 2018, the circuit court held a hearing on the State’s motion to dismiss. At the

conclusion of the hearing, the court granted the motion to dismiss, finding defendant’s

postconviction petition was untimely filed and, assuming arguendo it was timely filed, defendant

failed to demonstrate he suffered a deprivation of a constitutional right.

¶ 11 On December 3, 2018, defendant filed a timely notice of appeal from the circuit

court’s November 20, 2018, dismissal but described the nature of the order appealed as a motion

to withdraw the guilty plea and vacate judgment or, in the alternative, a motion to reconsider

sentence. On December 17, 2018, defendant filed a timely amended notice of appeal in

compliance with Illinois Supreme Court Rules 303(b)(5) and 606 (eff. July 1, 2017), which

stated the nature of the order appealed was the dismissal of a postconviction petition. See Ill. S.

Ct. R. 651(d) (eff. July 1, 2017) (providing the procedure for appeals in postconviction

proceedings is in accordance with the rules governing criminal appeals). Accordingly, this court

has jurisdiction of defendant’s appeal under Illinois Supreme Court Rule 651(a) (eff. July 1,

2017).

¶ 12 II. ANALYSIS

¶ 13 The Postconviction Act provides a remedy for defendants who have suffered a

substantial violation of constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471,

861 N.E.2d 999, 1007 (2006). In cases not involving the death penalty, the Postconviction Act

sets forth three stages of proceedings. Pendleton, 223 Ill. 2d at 471-72, 861 N.E.2d at 1007.

¶ 14 At the first stage, the circuit court independently reviews the defendant’s

postconviction petition and determines whether “the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2016). If it finds the petition is frivolous or patently

-4- without merit, the court must dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2016). If the

court does not dismiss the petition, it proceeds to the second stage, where, if necessary, the court

appoints the defendant counsel. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Defense

counsel may amend the defendant’s petition to ensure his or her contentions are adequately

presented. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Also, at the second stage, the State

may file a motion to dismiss the defendant’s petition or an answer to it. Pendleton, 223 Ill. 2d at

472, 861 N.E.2d at 1008. If the State does not file a motion to dismiss or the court denies such a

motion, the petition advances to the third stage, wherein the court holds a hearing at which the

defendant may present evidence in support of his or her petition. Pendleton, 223 Ill. 2d at

472-73, 861 N.E.2d at 1008. In this case, the State did file a motion to dismiss, and the court

granted that motion.

¶ 15 With the second stage of the postconviction proceedings, the circuit court is

concerned only with determining whether the petition’s allegations sufficiently show a

constitutional infirmity that would necessitate relief under the Postconviction Act. People v.

Coleman, 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998). At this stage, “the defendant

bears the burden of making a substantial showing of a constitutional violation” and “all

well-pleaded facts that are not positively rebutted by the trial record are to be taken as true.”

Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008. “[T]he ‘substantial showing’ of a

constitutional violation that must be made at the second stage [citation] is a measure of the legal

sufficiency of the petition’s well-pled allegations of a constitutional violation, which if proven at

an evidentiary hearing, would entitle petitioner to relief.” (Emphasis in original.) People v.

Domagala, 2013 IL 113688, ¶ 35, 987 N.E.2d 767. The court reviews the petition’s factual

sufficiency as well as its legal sufficiency considering the circuit court record and applicable law.

-5- People v. Alberts, 383 Ill. App. 3d 374, 377, 890 N.E.2d 1208, 1212 (2008). However, at a

dismissal hearing, the court is prohibited from engaging in any fact-finding. Coleman, 183 Ill.

2d at 380-81, 701 N.E.2d at 1071. Thus, the dismissal of a postconviction petition at the second

stage is warranted only when the allegations in the petition, liberally construed in light of the

trial record, fail to make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d

at 382, 701 N.E.2d at 1072. We review de novo the circuit court’s dismissal of a postconviction

petition at the second stage. Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008.

¶ 16 We begin our review of the circuit court’s second stage dismissal by addressing

defendant’s claim the circuit court erred by finding his postconviction petition was untimely.

Defendant acknowledges his postconviction petition was not timely filed under the

Postconviction Act but contends he alleged facts showing the delay in filing his postconviction

petition was not due to his culpable negligence. The State disagrees.

¶ 17 At the second stage of the postconviction proceedings, the circuit court may

dismiss a petition as untimely: (1) “if the petition fails to contain ‘allegations of lack of culpable

negligence’; and (2) if the State moves to dismiss on this ground.” People v. Wheeler, 392 Ill.

App. 3d 303, 308, 912 N.E.2d 681, 686 (2009) (quoting People v. Perkins, 229 Ill. 2d 34, 43,

890 N.E.2d 398, 403 (2007)). Section 122-1(c) of the Postconviction Act addresses the time for

filing a postconviction petition and provides, in pertinent part, the following:

“When a defendant has a sentence other than death, no proceedings under this

Article shall be commenced more than 6 months after the conclusion of

proceedings in the United States Supreme Court, unless the petitioner alleges facts

showing that the delay was not due to his or her culpable negligence. If a petition

for certiorari is not filed, no proceedings under this Article shall be commenced

-6- more than 6 months from the date for filing a certiorari petition, unless the

petitioner alleges facts showing that the delay was not due to his or her culpable

negligence. If a 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 showing that the delay was not due to his or her culpable

negligence.” 725 ILCS 5/122-1(c) (West Supp. 2017) (text of section effective

until June 1, 2018).

The defendant has the burden to demonstrate “an absence of culpable negligence in bringing” his

or her postconviction petition. People v. Boclair, 202 Ill. 2d 89, 104, 789 N.E.2d 734, 743

(2002). Our supreme court has explained the phrase “culpable negligence” describes “something

greater than ordinary negligence and is akin to recklessness.” Boclair, 202 Ill. 2d at 108, 789

N.E.2d at 745. The supreme court also approved of defining “culpable negligence” as a

“conscious choice of a course of action, in disregard of the consequences that might follow.”

(Internal quotation marks omitted.) People v. Rissley, 206 Ill. 2d 403, 419, 795 N.E.2d 174, 183

(2003) (quoting People v. Wilson, 143 Ill. 2d 236, 248, 572 N.E.2d 937, 942-43 (1991)). The

definition of culpable negligence gives weight to the exception to the time requirements

contained in section 122-1, “an exception *** historically viewed as the special safety valve in

the [Postconviction] Act.” (Internal quotation marks omitted.) Rissley, 206 Ill. 2d at 420, 795

N.E.2d at 184. The definition also comports with the well-established view the Postconviction

Act in general must be liberally construed to afford an opportunity to present questions of

deprivation of constitutional rights. Rissley, 206 Ill. 2d at 421, 795 N.E.2d at 184.

¶ 18 In his postconviction petition, defendant asserted he was not culpably negligent

for his 20-day delay in filing his postconviction petition because he mailed his petition for

-7- certiorari to the United States Supreme Court on June 28, 2016, the day it was due, and the

Supreme Court did not receive it. Defendant did not know about the Supreme Court’s lack of

receipt of his certiorari petition until his mother called the Supreme Court’s clerk’s office five

months later. Defendant mailed another petition for certiorari on December 12, 2016, and the

Supreme Court clerk returned the petition with a December 22, 2016, letter because the time for

defendant to file a petition for certiorari had expired. Defendant’s postconviction petition was

due December 28, 2016, and he filed it on January 18, 2017.

¶ 19 Illinois Courts have found a postconviction petition did set forth allegations

showing a lack of culpable negligence when (1) the late filing was due to the defendant’s

reasonable reliance on the incorrect advice of counsel (Rissley, 206 Ill. 2d at 421, 795 N.E.2d at

184), (2) a change in the law applicable to the defendant’s postconviction claim had occurred

(People v. Wilburn, 338 Ill. App. 3d 1075, 1077, 789 N.E.2d 797, 799-800 (2003)), and (3) the

defendant lacked access to legal materials because of segregation or a prison lockdown (People

v. Walker, 331 Ill. App. 3d 335, 341, 772 N.E.2d 758, 764 (2002) (collecting cases)). People v.

Marino, 397 Ill. App. 3d 1030, 1033-34, 927 N.E.2d 75, 79 (2010). While the aforementioned

instances are not an exhaustive list of situations showing a lack of culpable negligence,

defendant fails to cite any cases involving a situation similar to his. Additionally, we note our

supreme court has held the following: “It is well settled that all citizens are charged with

knowledge of the law. [Citation.] Ignorance of the law or legal rights will not excuse a delay in

filing a lawsuit. [Citation.] Thus, the sole obligation of knowing the time requirements for filing

a postconviction petition remains with the defendant.” People v. Lander, 215 Ill. 2d 577, 588,

831 N.E.2d 596, 603 (2005). It has also concluded a defendant’s entrustment of advice from

jailhouse lawyers, a prison law clerk, and a law librarian who have no proven specialized

-8- knowledge in postconviction matters demonstrates an indifference to the consequences likely to

follow from the defendant’s actions. Lander, 215 Ill. 2d at 587-88, 831 N.E.2d at 602-03.

¶ 20 Defendant contends his allegations show he diligently pursued his appeals.

However, defendant made the choice to mail his petition for certiorari on the day it was due and

then chose to wait five months to inquire about the petition’s status. Defendant is charged with

knowing his postconviction petition was due six months after (1) the due date for the petition for

certiorari or (2) the conclusion of the proceedings in the Supreme Court. See Lander, 215 Ill. 2d

at 587-88, 831 N.E.2d at 602-03. Despite that knowledge, defendant decided to wait five months

to inquire about the status of his petition, possibly leaving himself only a month to prepare his

postconviction petition. In choosing to wait five months to inquire into the status of his petition

for certiorari, defendant made a conscious decision and disregarded the possible consequences

of waiting so long. Then, when he learned his petition had not been received by the Supreme

Court, he mailed another petition for certiorari on December 12, 2016. On the date of mailing

the second petition, defendant should have known his postconviction petition was due on

December 28, 2016. The United States Supreme Court Rules clearly provide petitions for

certiorari must be filed within 90 days after the order denying discretionary review, which in this

case was June 28, 2016, and the maximum extension of time to file a petition for certiorari that

can be granted is 60 days. See Sup. Ct. R. 13.

¶ 21 Thus, we disagree with defendant’s contention he diligently pursued his claims.

Defendant could have checked on the status of his certiorari petition earlier, which would have

given him more time to prepare his postconviction petition. Defendant also should have been

preparing his postconviction petition as soon as he learned the Supreme Court did not receive his

first petition for certiorari. At the least, defendant had 16 days to prepare and file his

-9- postconviction petition before the statutory deadline expired. Accordingly, we find the circuit

court properly found defendant’s postconviction petition was untimely because he did not allege

facts demonstrating the delay was not due to his culpable negligence.

¶ 22 In the alternative, defendant argues that, if this court believes his petition does not

adequately address his lack of culpable negligence, then we should find his postconviction

counsel did not prove reasonable assistance. See Perkins, 229 Ill. 2d at 42, 890 N.E.2d at 402

(stating “[t]he [Postconviction] Act provides for a ‘reasonable’ level of assistance”). On the

facts alleged in his postconviction petition, we have found defendant did not show his delay in

filing his postconviction petition was not due to his culpable negligence. In his briefs, defendant

notes postconviction counsel does not provide reasonable assistance when counsel fails to make

amendments necessary to present a defendant’s claim. See Perkins, 229 Ill. 2d at 43, 890 N.E.2d

at 403. However, in his briefs, defendant does not assert any additional facts that could have

shown a lack of culpable negligence. As such, we fail to find anything counsel could have done

to successfully have presented defendant’s claim the delay in filing the postconviction petition

was not due to his culpable negligence. Thus, we do not find unreasonable assistance of

postconviction counsel.

¶ 23 Since a petitioner cannot present any constitutional claims if his or her

postconviction petition is dismissed as untimely on the State’s motion (Perkins, 229 Ill. 2d at 43,

890 N.E.2d at 403) and we have found the circuit court properly concluded defendant’s petition

was untimely, we decline to address defendant’s constitutional claims on the merits.

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we affirm the Coles County circuit court’s judgment.

¶ 26 Affirmed.

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