People v. Hall

2025 IL App (2d) 240293-U

• Court: Appellate Court of Illinois
• Decided: May 20, 2025
• Docket: 2-24-0293
• Status: Unpublished

Opinion

2025 IL App (2d) 240293-U No. 2-24-0293 Order filed May 20, 2025

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of McHenry County. ) Respondent-Appellee, ) ) v. ) No. 15-CF-963 ) DURELLE HALL, ) Honorable ) Tiffany E. Davis, Petitioner-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court. Justices Hutchinson and Jorgenson concurred in the judgment.

ORDER

¶1 Held: Postconviction counsel failed to comply with the requirements of Supreme Court Rule 651(c) where he did not amend petitioner’s pro se petition to adequately plead a lack of culpable negligence to excuse her late filing. Vacated and remanded.

¶2 Petitioner, Durelle Hall, appeals from the dismissal of her postconviction petition at the

second stage of proceedings. She contends that the trial court should not have dismissed the

petition and that postconviction counsel did not give her reasonable assistance because, inter alia,

he did not include key information to establish that she was not culpably negligent for the late

filing, which caused those claims to be dismissed. The State argues there was no prejudice to 2025 IL App (2d) 240293-U

petitioner. We agree with petitioner that counsel provided unreasonable assistance and that

prejudice is not required. Therefore, we vacate and remand.

¶3 I. BACKGROUND

¶4 In 2017, a jury found petitioner guilty of drug-induced homicide (720 ILCS 570/401 (West

2014) for the 2015 overdose death of Chelsie Kumm. The trial court sentenced petitioner to 14-

years imprisonment. We affirmed her conviction and sentence. People v. Hall, 2020 IL App (2d)

170723-U, pet. for leave to appeal denied, People v. Hall, No. 126195 (Ill. Sept. 30, 2020).

¶5 On December 13, 2021, petitioner filed a pro se postconviction petition where she alleged

that she was actually innocent, trial counsel was ineffective, and she was denied both a fair

prosecution and due process. Regarding her claim of actual innocence, petitioner maintained that

she did not commit the crime because she did not possess or deliver heroin; rather she used and

sold cocaine. Petitioner supported this claim with two affidavits that she characterized as newly

discovered evidence. Paula Bickauskas averred that she used to be addicted to heroin and “crack”

cocaine, petitioner supplied her with crack and weed, but she went to others for heroin. Petitioner’s

sister, Michelle Cappello averred that she asked petitioner for heroin, but petitioner only gave her

crack because petitioner did not sell heroin.

¶6 Petitioner alleged that trial counsel was ineffective by, inter alia, failing to investigate her

innocence and alibi, failing to call an expert, failing to adequately prepare for trial, and ordering

petitioner not to testify. As to petitioner’s remaining claims, she alleged that a hypodermic needle

was neither preserved nor tested, that the police rushed to judgment, that there were no fingerprints,

that no one saw her deliver heroin to the Kumm, and that there was no physical evidence that she

had contact with Kumm.

¶7 In February 2022 the trial court advanced petitioner’s pro se petition to the second stage

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and appointed postconviction counsel. In March 2022 the State filed a motion to dismiss. It argued,

inter alia, that petitioner’s pro se petition was untimely and that petitioner failed to allege that the

delay was not due to her culpable negligence.

¶8 On August 24, 2023, postconviction counsel filed a “supplemental petition” that

incorporated the claims contained in petitioner’s pro se petition. The supplemental petition also

expounded on the petitioner’s claims of actual innocence and ineffective assistance of counsel. It

further added that counsel failed to request a lesser-included offense instruction on unlawful

delivery of a controlled substance. The supplemental petition did not acknowledge the

untimeliness of the petitions and did not allege any facts regarding petitioner’s lack of culpable

negligence.

¶9 Postconviction counsel filed a certificate of compliance under Illinois Supreme Court Rule

651(c) (eff. July 1, 2017), wherein counsel averred that he had consulted with petitioner to

ascertain her contentions of deprivations of constitutional rights, that counsel “examined the record

of proceedings at trial to determine if any amendments are necessary *** [a]nd ha[d] adopted the

pro se filing along with filing a supplemental petition.” Notably, counsel did not state that he had

made any amendments to petitioner’s pro se petition necessary to adequately present her claims.

¶ 10 In November 2023 the State filed a second motion to dismiss that incorporated its previous

motion. The State argued, inter alia, that the pro se petition was untimely and did not allege facts

to excuse her delay. pursuant to section 122-1(c) of The Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1(c) (West 2020)). The State set forth the relevant dates, maintained that the pro se

petition was filed almost six months after the statutory deadline, and asserted that the supplemental

petition failed to explain the tardiness. The State also argued that petitioner’s claims were forfeited

because they could have been raised on direct appeal and the claims were without merit.

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¶ 11 In December 2023 postconviction counsel filed a response to the State’s motion to dismiss.

As to timeliness, counsel wrote:

“Illinois Court[s] have held that claims of actual innocence have been held to have

relaxed rules and timelines with regard to Post-Conviction filings. People v. Edwards,

2012, 111711 (2012), 24 [sic] (discussing the filing of successive Petitions for Post-

Conviction Relief counter to the intention of the law). In this case, the Petitioner’s

conviction was upheld by the Appellate Court and her Petition for Leave to Appeal was

denied in the middle of the Covid Pandemic. During that time, the Illinois Supreme Court

waived countless timelines and the [S]tate required vast lockdowns of facilities which

restricted communication in and out of [S]tate facilities. These restrictions and waivers

should extend the timeline to file the Post-Conviction [petition] and no further assessment

pursuant to 725 ILCS 5/122-1(c) is needed. ***

***

However, if this court finds that the Petition and Supplemental Petition for

Postconviction Relief is deficient or has waived any claims, this court should give the

Petitioner leave to file an Amended Supplemental Petition to remedy these deficiencies.

See People v. Cruz, 2013 IL 113399 (2013), 23-24 [sic] (discussing the filing of a

Supplemental Petition to remedy a procedural issue, here untimeliness of the filing, raised

in the State’s Motion to Dismiss.)”

¶ 12 On April 4, 2024, the trial court granted the State’s motion to dismiss. The court found that

petitioner’s pro se petition was untimely and no rationale was given for its tardiness besides the

COVID pandemic, which the court rejected. The court reasoned that neither the pro se petition nor

the supplemental petition “made an effort to acknowledge the tardiness of the petition[s] to excuse

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lack of culpable negligence as required by Section 122-1(c).”

¶ 13 Regarding petitioner’s claim of actual innocence, the trial court found that the claim was

not well pled, the affidavits did not contain newly discovered evidence, and petitioner failed to

present any evidence that was of such a conclusive character that it would probably change the

result on retrial. The court also determined that petitioner’s ineffective assistance claims were not

well pled, were refuted by the record, and were barred by res judicata and waiver.

¶ 14 Petitioner timely appealed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, petitioner argues that postconviction counsel provided an unreasonable level of

assistance because counsel failed to amend her pro se petition to adequately support and establish

that petitioner was not culpably negligent in filing her untimely petition. Petitioner urges us to

reverse the trial court’s dismissal of her postconviction petition. We review de novo a trial court’s

dismissal of a postconviction petition at the second stage. People v. Addison, 2023 IL 127119,

¶ 17. Additionally, our review is de novo when the issue concerns the proper interpretation of a

supreme court rule. See id.

¶ 17 The Act provides a three-stage process for a petitioner to allege his conviction resulted

from a substantial denial of his constitutional rights. 725 ILCS 5/122-1 et seq. (West 2020); People

v. Huff, 2024 IL 128492, ¶ 19. At the first stage, the court independently assesses a pro se petition

and may dismiss it only if the court determines that it is frivolous or patently without merit. Id.;

see also 725 ILCS 5/122-2.1 (West 2020). If the trial court does not dismiss the petition or fails to

rule upon it within 90 days of its filing, the petition advances to the second stage where the court

may appoint counsel for indigent defendants. Huff, 2024 IL 128492, ¶ 19. The State may move to

dismiss the petition. Id. If the allegations in the petition, supported by “affidavits, records, or other

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evidence” make a substantial showing of a deprivation of constitutional rights, the petition will

advance to a third stage for an evidentiary hearing. Id.

¶ 18 In a postconviction proceeding, there is no constitutional right to counsel. People v. Urzua,

2023 IL 127789, ¶ 51. However, indigent defendants have a statutory right to counsel in second-

stage postconviction proceedings. 725 ILCS 5/122-4 (West 2020). “Counsel is appointed not to

protect postconviction petitioners from the prosecutorial forces of the State but to shape their

complaints into the proper legal form and to present those complaints to the court.” Addison, 2023

IL 127119, ¶ 19.

¶ 19 A postconviction petitioner is entitled only to the level of assistance granted by the Act,

which the supreme court has labeled as a “reasonable” level of assistance. Id. The reasonable level

of assistance includes compliance with Rule 651(c). People v. Custer, 2019 IL 123339, ¶ 32;

People v. Perkins, 229 Ill. 2d 34, 42 (2007). Rule 651(c) requires that postconviction counsel

(1) consult with the petitioner to ascertain his contentions of deprivation of constitutional rights,

(2) examine the trial record, and (3) make “any amendments to the petitions filed pro se that are

necessary for an adequate presentation of [the] petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff.

July 1, 2017).

¶ 20 If a postconviction petition is not filed within the limitations period, the Act requires the

petitioner to allege facts showing the delay was not due to his or her culpable negligence. 725

ILCS 5/122-1(c) (West 2020). Absent allegations of lack of culpable negligence, the Act directs

the trial court to dismiss the petition as untimely at the second stage upon the State’s motion. Id.

(no postconviction proceedings shall be commenced outside the time limitations period in the Act

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

negligence”).

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¶ 21 To comply with Rule 651(c) at the second stage of proceedings, counsel must provide the

reasons why the petition was filed late to establish lack of culpable negligence, thereby precluding

the dismissal of the petition as untimely. Perkins, 229 Ill. 2d at 44. Therefore, counsel must amend

the petition to allege any available facts showing that the delay in filing was not due to the

defendant’s culpable negligence. Id. at 48, 50. Counsel must also allege any reason for the delay

apparent from the pleadings and record. Id.

¶ 22 The culpable negligence standard contemplates something greater than ordinary

negligence and is akin to recklessness. People v. Lighthart, 2023 IL 128398, ¶ 73; People v.

Johnson, 2017 IL 120310, ¶ 26. To establish a lack of culpable negligence, a petitioner must

present allegations of specific facts showing why his tardiness should be excused while vague or

conclusory assertions will not suffice. People v. Evans, 2017 IL App (1st) 143268, ¶ 26. The

petitioner bears a heavy burden to affirmatively demonstrate why the exception to the time limits

of the Act is applicable to his case. People v. Kirilyuk, 2024 IL App (2d) 230154, ¶ 33.

¶ 23 Postconviction counsel’s filing of a Rule 651(c) certificate of compliance creates a

rebuttable presumption of reasonable assistance. Addison, 2023 IL 127119, ¶ 21. A petitioner may

overcome the presumption by, inter alia, demonstrating that postconviction counsel did not make

all necessary amendments to the pro se petition, including those necessary to overcome procedural

bars. Id.

¶ 24 We review a counsel’s substantial compliance with Rule 651(c)’s requirements de novo.

People v. Smith, 2020 IL App (1st) 181220, ¶ 13. If counsel failed to substantially comply with

Rule 651(c), we must remand without addressing the petition’s claims on the merits. People v.

Addison, 2023 IL 127119, ¶ 33.

¶ 25 Here, petitioner has rebutted any presumption that postconviction counsel provided

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reasonable assistance. In her pro se petition, petitioner failed to address the untimeliness of her

petition. When the State filed its motion to dismiss it argued that petitioner’s petition was untimely.

However, postconviction counsel did not thereafter amend the petition in response to the State’s

timeliness argument. Indeed, counsel failed to even acknowledge the untimeliness issue in his

supplemental petition and failed to allege sufficient facts that showed lack of culpable negligence

to justify the late filing of the petition. Instead, counsel waited until he filed a response to the

State’s second motion to dismiss based on untimeliness to argue that petitioner’s petition for leave

to appeal was denied during the COVID pandemic. Counsel maintained that the Illinois Supreme

Court waived timelines during the pandemic and the State required vast lockdowns that restricted

communication in and out of facilities. Counsel’s vague and conclusory allegations were grossly

insufficient.

¶ 26 To establish lack of culpable negligence, counsel was required to allege specific facts

showing why petitioner’s tardiness should be excused. See Evans, 2017 IL App (1st) 143268, ¶ 26.

Rule 651(c) requires counsel to amend petitioner’s petition “to allege any available facts necessary

to establish that the delay was not due to the petitioner’s culpable negligence.” Perkins, 229 Ill. 2d

at 49. Here, counsel failed to support his argument with, inter alia, specific dates of pandemic-era

lockdowns, how such lockdowns hindered petitioner’s progress on her petition, or how petitioner

made diligent attempts to prepare her petition despite COVID lockdowns. Further, postconviction

counsel failed to attach any supporting documentation or evidence to support his allegations. See

725 ILCS 5/122-2 (West 2020) (“The petition shall have attached thereto affidavits, records, or

other evidence supporting its allegations or shall state why the same are not attached.”). Therefore,

we hold that postconviction counsel failed to provide reasonable assistance. See Urzua, 2023 IL

127789, ¶ 51.

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¶ 27 Citing Perkins, the State argues that counsel provided reasonable assistance because

counsel argued that the COVID pandemic justified petitioner’s late filing. In Perkins, the supreme

court held that “[a]n adequate or proper presentation of a petitioner’s substantive claims

necessarily includes attempting to overcome procedural bars, including timeliness, that will result

in dismissal of a petition if not rebutted.” Perkins, 229 Ill. 2d at 44. In applying this principle to

the case at hand, the Perkins court noted that the State had raised timeliness in its motion to dismiss,

so counsel was fully aware of it, although counsel did not amend the petition. Instead, at the

hearing, counsel “in effect argued the delay was not due to [defendant's] culpable negligence,” yet

the Perkins court observed that argument was not particularly compelling. Id. at 51. The Perkins

court concluded the oral argument did not demonstrate there was some other excuse counsel could

have raised for the delay in filing, noting there was “nothing in the record to indicate that

[petitioner] had any other excuse showing the delay in filing was not due to his culpable

negligence.” Id.

¶ 28 Here, unlike Perkins, petitioner had a potentially valid excuse for her delay, but counsel

failed to adequately allege specific facts or attached any supporting documents. Therefore, Perkins

is not controlling here.

¶ 29 We conclude that this cause should be remanded to the circuit court for the appointment of

new postconviction counsel, who will then have the opportunity to file an amended petition along

with any supporting documentation or evidence or an explanation as to its unavailability. 725 ILCS

5/122-2 (West 2020).

¶ 30 III. CONCLUSION

¶ 31 For the foregoing reasons, we vacate the judgment of the circuit court of McHenry County

and remand the case for further proceedings consistent with this disposition.

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¶ 32 Vacated and remanded.

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