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SECOND DIVISION

July 24, 2001

No. 1-00-1421

JUSTICE GORDON delivered the opinion of the court:

Defendant Chevae Langston was found guilty of first-degreemurder (720 ILCS 5/9-1(a)(2) (West 1994)) on January 26, 1996. On April 2, 1996, he was sentenced to 42 years in prison. Atthat time the trial judge informed him that he was not entitledto credit for good conduct and that he would have to serve 100percent of his sentence pursuant to the truth-in-sentencing law. 730 ILCS 5/3-6-3(a)(2)(i) (West 1996)(defendant convicted offirst-degree murder receives no good conduct credit and mustserve entire sentence imposed). Defendant subsequently appealedhis conviction and sentence arguing, inter alia, that the truth-in-sentencing law was unconstitutional. His conviction andsentence were affirmed by the appellate court on April 10, 1998.

On May 14, 1998, defendant filed a petition for leave toappeal with our Supreme Court. Defendant's petition was deniedon March 31, 1999. However, on that date our Supreme Court alsoentered a supervisory order instructing the appellate court tovacate and reconsider its decision of April 10, 1998, in thelight of People v. Reedy, 186 Ill. 2d 1, 708 N.E.2d 1114 (1999). In Reedy, our Supreme Court held Public Act 89-404, including itstruth-in-sentencing provisions, unconstitutional because itviolated the single subject rule. On May 16, 1999, pursuant toour Supreme Court's supervisory order, the appellate courtvacated its earlier affirmation of defendant's direct appeal andremanded the case to the trial court to correct the sentence soas to account for good conduct. On November 5, 1999, the trialcourt corrected its mittimus to account for good conduct creditin accordance with the remand.

On September 27, 1999, defendant filed a post-convictionpetition. On the merits, the petition alleged that defendant wasdenied effective assistance of counsel for the following reasons:(1) his trial attorney failed to rebut the State's theory thatdefendant's conduct was motivated by gang membership; (2) histrial attorney failed to present mitigating evidence at hissentencing hearing on April 2, 1996; (3) his trial counsel failedto file a motion for reconsideration of his sentence; and (4) histrial counsel did not accept a ten-year plea agreement offered bythe State. The petition also alleged that defendant was deniedthe right to choose his counsel because his trial counsel did notdisclose that he had previously represented defendant's father.

The defendant's post-conviction petition acknowledged thatit was not timely filed but asserted that the delay was not dueto culpable negligence. The petition avers that it was filedlate because defendant's counsel was awaiting the outcome of apending petition for leave to appeal before our Supreme Court inthe instant case and was also awaiting the Supreme Court'sdecision in the Reedy case, which was also then pending. Thepetition further states that "[c]ounsel was focusing onPetitioner's pending PLA and the then pending Reedy case. Apositive result in Reedy could have yielded the possibility ofre-sentencing thereby eliminating the need to file this action. If the PLA had been granted, counsel would have file[d] herappearance with the Illinois Supreme Court. Frankly, counsel wastrying to save Langston's family additional expenses forunnecessary litigation." The petition then states that "counselalso focused on the pre-1995 law which allowed either the timefrom the denial of the PLA or 3 years from the time of sentencing'whichever is later'" in which to file a post-convictionpetition. (Emphasis in original.)

On November 5, 1999, the trial court corrected the mittimusto account for good conduct credit. Defendant's post-convictionpetition was dismissed on February 18, 2000. In dismissing thepetition the court stated that it "was not untimely due topetitioner's culpable negligence". The petition however, was"dismissed on the merits." Defendant's motion to reconsider thatdismissal was denied on March 31, 2000. This appeal followed.

On appeal, the State revisits the issue of timeliness andalleges that he petition warranted dismissal because it wasuntimely, and that we may sustain the trial court on any groundsupported by the record. Defendant, however, urges as he didbelow, that the was not culpably negligent in filing his post-conviction petition late because of his reliance on his counsel'sdecision to await the decision in Reedy. The State, however,responds that defendant's petition was properly dismissed becausehis assertions in his petition that he was not culpably negligentare insufficient as a matter of law under our Supreme Court'srecent decision in People v. Rissley, No. 82536 (March 15, 2001),in which the court rejected reliance on advice of counsel as asufficient excuse to negate culpable negligence for delay infiling. We agree with the State.⁽¹⁾

Section 5/122-1(c) of the Post-Conviction Hearing Actprovides in relevant part as follows:

"No proceedings under this Article shall be commencedmore than 6 months after the denial of a petition forleave to appeal or the date for filing such a petitionif none is filed or more than 45 days after thedefendant files his or her brief in the appeal of thesentence before the Illinois Supreme Court (or morethan 45 days after the deadline for the filing of thedefendant's brief with the Illinois Supreme Court if nobrief is filed) or 3 years from the date of conviction,whichever is sooner, unless the petitioner allegesfacts showing that the delay was not due to his or herculpable negligence." 725 ILCS 5/122-1(c) (West 1998).

In this case, defendant's petition was denied on March 31,1999; thus, the six-month statutory period following that dateexpired on September 30, 1999. Defendant's conviction was finalon April 2, 1996; thus, the three-year period following that dateexpired on April 2, 1999. Defendant's post-conviction petitionwas therefore due on April 2, 1999, the earlier of those twodates pursuant to section 122-1(c). Since defendant's post-conviction petition was filed on Sept. 27, 1999, it was thereforetoo late.

Defendant urges that his petition was not due until threeyears after November 5, 2001, the date on which the trial courtcorrected defendant's sentence after the remand from theappellate court. This is the date, defendant argues, on whichhis first valid sentence was imposed and thus it must beconsidered the date of conviction for purposes of section 122-1(c).

We agree that the limitations period is triggered by thedate of sentencing. See People v. Woods, 193 Ill. 2d 483, 739N.E.2d 493 (2000). However, while defendant is correct inasserting that the date of sentence is the trigger for the periodof limitations, we are persuaded that the triggering event is theinitial sentence, even though it was invalid. Nothing in ourSupreme Court's holding in Woods indicates that to trigger afinal judgement and the running of the filing period, thesentence must be the correct one. Rather, Woods states that indetermining the time for filing a post-conviction petition the"'date of conviction' means that date that final judgmentincluding sentence was entered." (Emphasis added.) Woods, 193Ill. 2d at 489, 739 N.E.2d at 496. Obviously, the imposition ofa sentence, even though later held on appeal to be erroneous,would suffice to lend requisite finality for purposes of filing apost-conviction petition as well as an appeal. In fact, thefiling of a post-conviction petition or appeal would be thevehicle through which erroneous sentences would be discovered andoverturned. Thus, the fact that a sentence imposed by the trialcourt is later overturned would not defer the date for the filingof a post-conviction petition to after the initial sentence isentered.

This is consistent with the fact that, under the limitationsperiod imposed by section 122-1(c), a defendant may be requiredto file his post-conviction petition prior to the completion ofhis direct appeal. People v. Rissley, No. 82536, slip op. at 4(March 15, 2001) ("post-conviction petitions must sometimes befiled before the termination of proceedings on direct appeal");see also M. Levy, Practice Under the Illinois Post-ConvictionHearing Act, 11 DCBA Brief 42 (1999) (prior to revision ofsection 122-1(c), post-conviction petitions were not generallyfiled until direct appeal was concluded, however, "under thecurrent limitations scheme, the defendant may need to file apost-conviction petition while his or her direct appeal is stillpending"). For example, section 122-1(c) provides that when adefendant files a brief with our Supreme Court the deadline forfiling his post-conviction petition is 45 days after the brief isfiled. 725 ILCS 5/122-1(c)(West 1998). Clearly this wouldrarely leave sufficient time for our Supreme Court to render itsdecision in the direct appeal before the expiration of the filingperiod for the post-conviction petition. Cf. Rissley, No. 82536,slip op. at 4. Accordingly, the statute on its face contemplatesthat the time for filing the post-conviction petition may verywell expire before a court of review has opportunity to reviewthe propriety of a defendant's sentence, even though the court ofreview may ultimately overturn the sentence. As it is wellsettled that statutes should be evaluated as a whole rather thanas distinct pieces, we should not promote such a result in thiscase. See Newland v. Budget-Rent-A-Car, Inc., 319 Ill. App. 3d453, 456, 744 N.E.2d 902, 904 (2001) ("statutes should beevaluated as a whole").

Moreover, our holding herein does not prevent defendant fromfiling a second or subsequent post-conviction petition to raiseany deficiencies in the subsequent proceedings regarding hissentence on remand which occurred after the deadline for thefiling of the initial post-conviction petition. While second orsubsequent post-conviction petitions are generally prohibited,our Supreme Court in People v. Flores, 153 Ill. 2d 264, 606N.E.2d 1078, (1992), has opened the door for second or subsequentpetitions in such situations. The Flores court held that asecond or subsequent petition can be filed when a defendant isrepresented by the same attorney on direct appeal and inproceedings on his initial post-conviction petition and wishes toallege ineffective assistance of counsel on direct appeal. Thecourt reasoned that because the defendant was represented by hisdirect appeal counsel in his first post-conviction petition,ineffective assistance of his counsel on direct appeal could nothave been raised in the first post-conviction petition. TheFlores court states that where a "claimed error is one whichcould not have been presented in an earlier proceeding,procedural bars may be ineffectual in bringing about thatfinality which ordinarily follows direct appeal and the firstpost-conviction proceeding. In such cases, there is thepotential that a second or subsequent post-conviction petitionmay be filed." Flores, 153 Ill. 2d at 275, 606 N.E.2d at 1083. While the context of the holding in Flores is different than inthe case at bar, we find that the reasoning applies equally wellin this case as to any new matters raised after reversal andremand.

A defendant, however, would in any event be barred by resjudicata from raising in a second or subsequent petition anyclaims which occurred before his initial petition was due, asthey could have been raised in that first petition. 725 ILCS5/122-3 (West 1998) ("claim of substantial denial ofconstitutional rights not raised in the original or amendedpetition is waived"); People v. Erickson, 183 Ill. 2d 213, 223,700 N.E.2d 1027, 1032 (1998) ("a ruling on a post-convictionpetition has res judicata effect with respect to all claims thatwere raised or could have been raised in the initial petition"). In the case at bar, all of the issues raised in the petitionconcern proceedings which occurred before the initial deadlinefor the filing of a post-conviction petition. Consequently,defendant cannot, in this case, overcome his failure to timelyfile by arguing that his petition should be considered a timelyfiled second or subsequent post-conviction petition.

Thus, as defendant's petition was filed after April 2, 1999,it was not timely. Accordingly, we must now address whether thatlate filing was excused because it was not due to defendant'sculpable negligence. As we previously noted the State contends,based on People v. Rissley, that defendant's reasons for filinglate (namely that his counsel was to blame for the late filingrather than himself) are insufficient as a matter of law. Weagree.

A late petition may be considered by the court if thedefendant was not culpably negligent in filing late. 725 ILCS5/122-1(c) (West 1998). In order to prevail under thisexception, the defendant must allege that he was not culpablynegligent. 725 ILCS 5/122-1(c) (West 1998). In the case at bar,the allegations that defendant was not culpably negligent areinsufficient as a matter of law.

All of the allegations revolve around the failure ofdefendant's post-conviction counsel to discern the correctdeadline for the filing of his petition. Pursuant to the recentholding up our Supreme Court in the case of People v. Rissley,No. 82536, slip op. at 9 (March 15, 2001), a petitioner isresponsible for the errors of his counsel which result in a latefiling. A petitioner thus cannot claim that he was not culpablynegligent because his petition was filed late due to hiscounsel's mistakes rather than his personal mistakes. Rissley,slip op. at 11 ("[r]eliance on advice of counsel does notconstitute a lack of 'culpable negligence' sufficient to excuseand untimely filing of a post-conviction petition").

Defendant further urges, however, that we should make anexception to the decision in Rissley in those cases where thedelay was occasioned in order to await a pending decision.Defendant contends that in the instant case his counsel's errorshould not constitute culpable negligence because the delay wasdesigned to await the decision of our Supreme Court in Reedy. Insupport, the defendant cites People v. Hernandez, 296 Ill. App.3d 349, 351-52, 694 N.E.2d 1082, 1083-84 (1998), in which thecourt held that delay occasioned to await forthcoming law couldbe sufficient to show that the delay was not due to culpablenegligence. Arguably, where such a delay is attributable toadvice of counsel, the result in Hernandez was overruled by ourSupreme Court in Rissley where it refused to consider a delayattributable to advice of counsel sufficient to show a lack ofculpable negligence.

However, we need not determine this issue as the decision inReedy, which resolved fully the issue of the validity of thetruth and sentence law, was decided well within the limitationsperiod. Reedy was decided on January 22, 1999. Defendant'spetition however, was not due until April 2, 1999. Counseltherefore had ample time after Reedy was decided to timely filedefendant's petition, and we do not find a lack of culpablenegligence in failing to do so. Furthermore, defendant argued inhis petition that a positive outcome in Reedy could haveeliminated the need for him to file a petition. This is clearlynot the case. The outcome in Reedy favored defendant (the truth-in-sentencing law was declared unconstitutional), yet he filed apost-conviction petition anyway based on other argumentsinvolving the merits of his conviction and sentencing issuesunrelated to Reedy. Defendant's counsel's decision to await thedecision in Reedy can thus hardly be a reason for delay lackingin culpable negligence. Neither can counsel's failure to timelyfile because of her failure to understand the law, nor due to adesire to save her client legal fees, be considered reasons whichshow a lack of culpable negligence.

Finally, defendant argues that since the trial court did notdismiss his petition as untimely, but rather dismissed it on themerits we are therefore bound to reach its merits on appeal. This argument has no basis in law. The review the dismissal of apost-conviction petition de novo (People v. Collins, 319 Ill.App. 3d 193, 195, 743 N.E.2d 209, 211 (2000)) and we may affirmits dismissal on any basis with support in the record (MaterialService Corp. v. Department of Revenue, 98 Ill. 2d 382, 387, 457N.E.2d 9, 12 (1983)).

For the reasons discussed above, the judgment of the circuitcourt of Cook County is affirmed.

Affirmed.

COUSINS and McBRIDE, JJ., concur.

1. Because we find that defendant's petition was properlydismissed, we need not address his other arguments on appealwhich relate to the merits of his petition.