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                                                                                                           FIRST DIVISION
                                                                                                           September 25, 2000

Defendant, Philip Faraone, appeals from the denial of hismotion for extension of time to file a post conviction petition. We hold that the principles stated in People v. Coleman, 183 Ill.2d 366, 701 N.E.2d 1063 (1998), should apply to review ofdecisions on motions for extensions of time to file post-conviction petitions. Using these standards, we find thatdefendant failed to state sufficient facts to warrant anextension of time. Therefore, we affirm the trial court'sdecision.

The trial court, in a bench trial, found defendant guilty ofmurder and armed robbery. We affirmed the conviction andsentence. People v. Faraone, No. 1-97-0624 (1997) (unpublishedorder under Supreme Court Rule 23). Our supreme court denieddefendant's petition for leave to appeal on February 4, 1998.

By letter dated February 9, 1998, defendant's attorneyinformed him of the denial of the petition for leave to appeal. The attorney added that he was "reviewing the matter to determinewhether there [was] a basis to proceed with a Post-ConvictionPetition."

On September 10, 1998, defendant filed his motion forextension of time to file a postconviction petition. He allegedthat, after he received his attorney's letter, he triedrepeatedly to contact his attorney to discuss the postconvictionpetition. His attorney did not respond to the attemptedcontacts, so the attorney never told defendant that he had notfiled the petition.

The trial court denied the motion for extension of time.Defendant filed this appeal pursuant to Supreme Court Rule651(a). 134 Ill. 2d R. 651(a).

Under the Post-Conviction Hearing Act (the Act) (725 ILCS5/122-1 et seq. (West 1998)), a defendant must file his post-conviction petition within six months of the denial of hispetition for leave to appeal his conviction, "unless thepetitioner alleges facts showing that the delay was not due tohis or her culpable negligence." 725 ILCS 5/122-1(C) (West 1998). Defendant here filed his motion for extension of time more thanseven months after our supreme court denied his petition forleave to appeal.

The parties note that appellate court decisions conflict onthe applicable standard for reviewing decisions on motions forextensions of time to file postconviction petitions. The courtapplied de novo review in People v. Perry, 293 Ill. App. 3d 113,115, 687 N.E.2d 1095 (1997), but used a manifest error standardin People v. Mitchell, 296 Ill. App. 3d 930, 933, 696 N.E.2d 365(1998). Our supreme court, in People v. Caballero, 179 Ill. 2d205, 214, 688 N.E.2d 658 (1997), found that People v. Silagy, 116Ill. 2d 357, 365, 507 N.E.2d 830 (1987), established a manifesterror standard of review for all aspects of postconvictionproceedings. But the court subsequently, in Coleman, 183 Ill. 2dat 383-84, overruled that part of the holding of Silagy andestablished different standards of review for the several stagesof postconviction proceedings.

The Coleman court observed that prior cases applied thedeferential manifest error standard of review because "thepost-conviction trial judge is able to observe and hear thewitnesses at the evidentiary hearing and, therefore, occupies a[]position of advantage in a search for the truth[] which []isinfinitely superior to that of a tribunal where the sole guide isthe printed record[]." Coleman, 183 Ill. 2d at 384. Becausesome stages of postconviction proceedings require no testimony,the court found that decisions at those stages do not warrantdeferential review.

"The manifestly erroneous standard represents thetypical appellate standard of review for findings offact made by a trial judge. [Citation.] For thisreason, we question the continued use of this standardin cases where a post-conviction petition has beendismissed without an evidentiary hearing. At thedismissal stage of a post-conviction proceeding, allwell-pleaded facts that are not positively rebutted bythe original trial record are to be taken as true. Theinquiry into whether a post-conviction petitioncontains sufficient allegations of constitutionaldeprivations does not require the circuit court toengage in any fact-finding or credibilitydeterminations. The Act contemplates that suchdeterminations will be made at the evidentiary stage,not the dismissal stage, of the litigation. ***Accordingly, we believe the manifestly erroneousstandard is only appropriate when reviewing thepropriety of an order of the circuit court granting ordenying post-conviction relief at the conclusion of theevidentiary stage of the proceeding.

*** The decision to dismiss a post-convictionpetition does not require a true exercise of discretionby the circuit court. In fact, no discretion is to beemployed at this stage of the litigation-where thepetitioner alleges sufficient facts which demonstrate aconstitutional deprivation, this court has construedthe Act to require the circuit court to proceed to theevidentiary stage of the proceeding so that a fullevidentiary record can be made, replete with findingsof fact. All factual inquiries into the petition'sallegations are eliminated at this stage of theproceedings; therefore, the circuit court's inquiry islimited solely to the sufficiency of the allegations. Such a determination, in general, encompasses a[]uniquely legal dimension[] [citation] which,historically, has never been subject to discretionaryreview in this state.

In light of the foregoing, we are of the opinionthat the ultimate question regarding the sufficiency ofthe allegations contained in a post-conviction petitionmerits treatment as a legal inquiry requiring plenaryappellate review." Coleman, 183 Ill. 2d at 384-88.

In People v. McClain, 292 Ill. App. 3d 185, 188, 684 N.E.2d1062 (1997), the appellate court held that the burden on adefendant moving for an extension of time to file a post-conviction petition matches the burden a defendant faces on thepost conviction petition itself. We agree and we find that thereasoning of Coleman concerning review of decisions on postconviction petitions guides assessment of the standard forreviewing decisions on motions for extension of time to file suchpetitions.

The court in McClain, 292 Ill. App. 3d at 188, suggestedthat a trial court could hold an evidentiary hearing to determinewhether a defendant acted with culpable negligence when he failedto timely file his postconviction petition. If a trial courtholds such a hearing and listens to the testimony of witnesses,then the manifest error standard applies to our review of thetrial court's factual findings. See Coleman, 183 Ill. 2d at 385.

But here the trial court denied the motion for extension oftime because it found the allegations of the petitioninsufficient to warrant the requested extension. At this stage,the court must accept as true all facts pleaded in the motionunless the trial record positively rebuts those pleadings. SeeColeman, 183 Ill. 2d at 385. The assessment of the sufficiencyof those allegations presents a legal question subject to plenaryreview. See Coleman, 183 Ill. 2d at 387-88.

Defendant's attorney told defendant the attorney wouldreview defendant's case to determine whether to file a post-conviction petition. Thereafter defendant heard nothing from theattorney, despite defendant's repeated efforts to contact him.Defendant did not file anything - not even a motion for anextension of time - until more than a month after the period forfiling a postconviction petition expired.

Defendant had the burden of alleging facts that show theabsence of culpable negligence. People v. Van Hee, 305 Ill. App.3d 333, 336, 712 N.E.2d 363 (1999). The facts alleged show thatdefendant had ample notice of the right to file a postconvictionpetition. His attorney said only that he would review the fileto determine whether to file such a petition. The allegations donot lead to the conclusion that the attorney misled defendant orcaused him to believe the attorney had decided to file a postconviction petition. Defendant needed to act prior to theexpiration of the statutory period to preserve his rights. Wefind the facts stated in the petition do not meet defendant'sburden of showing the absence of culpable negligence.

Finally, defendant argues that he should have more time tofile his postconviction petition because this court recentlyreversed the denial of a codefendant's postconviction petition.See People v. Chomer, No. 1-97-2135 (1998) (unpublished orderunder Supreme Court Rule 23). As defendant has not presented aproposed postconviction petition, we can only speculate as to theuse he intends to make of the new decision. The argument indefendant's brief does not show that any new facts or applicablelegal principles came to light because of our decision. On thisrecord, we cannot say that our decision on the codefendant'spetition shows the absence of culpable negligence in the delaybeyond the statutory period for filing the postconvictionpetition. Therefore, we affirm the trial court's denial ofdefendant's motion for extension of time to file his post-conviction petition.

Affirmed.

FROSSARD and TULLY, JJ., concur.