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SIXTH DIVISION
December 23, 2003

No. 1-02-2631

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Following a bench trial in case number 96 CR 12932, defendant Van Paleologos wasconvicted of aggravated criminal sexual assault, home invasion, armed robbery, and armed violence. He was sentenced to 25 years in prison for aggravated criminal sexual assault and a consecutive 25-year term of imprisonment for the other three convictions. Defendant subsequently pleaded guiltyto home invasion and attempted aggravated criminal sexual assault in case number 96 CR 12931 andwas sentenced to concurrent terms of 25 and 15 years in prison, respectively, to be servedconcurrently with the sentence imposed in case number 96 CR 12932. On appeal we affirmed in anorder pursuant to Supreme Court Rule 23. People v. Paleologos, No. 1-98-1832, 1-99-1143 cons.(June 11, 2001) (unpublished order pursuant to Supreme Court Rule 23).

Defendant by retained counsel filed a petition for post-conviction relief. Judge Palmer denieddefendant's request that he recuse himself, and Judge McSweeney-Moore denied his motion forsubstitution of judge for cause on the petition. Judge Palmer dismissed the petition for beinguntimely. The facts of the case will only be discussed as relevant to the issues on appeal.

In his post-conviction petition, defendant alleged ineffective assistance of trial and appellatecounsel regarding the following issues: (1) he was denied effective assistance of trial counsel becausehis lawyer failed to correctly advise him as to the maximum sentence he could serve, which resultedin his rejection of the plea offer and imposition of a higher sentence after he proceeded to trial; (2)the aggregate sentence of 50 years in prison violated both federal and state constitutional provisions;and (3) he was denied effective assistance of appellate counsel because his lawyer did not challengethe ineffective assistance of trial counsel in the context of the incorrect information offered by trialcounsel during the plea negotiation stage of the proceedings. He also alleged that his failure to filehis petition within three years from the date of his conviction was not due to his culpable negligence. At this stage, summary dismissal is reviewed de novo. People v. Coleman, 183 Ill. 2d 366 (1998).

I. POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)) provides amechanism by which criminal defendants can assert that their convictions were the result of asubstantial denial of their rights under the United States Constitution and the Illinois Constitution. People v. Mahaffey, 194 Ill. 2d 154, 170 (2001). A post-conviction petition is a collateral attack ona prior conviction. Mahaffey, 194 Ill. 2d at 170.

In a noncapital case, the Act creates a three-stage procedure for post-conviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). At stage one, the trial court, without input from theState, examines the petition to determine whether it is frivolous or patently without merit. 725 ILCS5/122-2.1 (West 2000). If the petition is not dismissed at stage one, it proceeds to stage two, wheresection 122-4 of the Act (725 ILCS 5/122-4 (West 2000)) provides for the appointment of counselfor an indigent defendant. At stage two the State has the opportunity to either answer or move todismiss the petition (725 ILCS 5/122-5 (West 2000)) and the trial court determines whether thepetition makes a substantial showing of a constitutional deprivation. Coleman, 183 Ill. 2d at 381. If the petition is not dismissed at stage two, it proceeds to stage three, where the trial court conductsan evidentiary hearing. 725 ILCS 5/122-6 (West 2000). The instant case presents a petitiondismissed at the first stage of the post-conviction process. As previously noted, at the first stage, thecircuit court determines whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000).

The defendant's allegations involve claims of ineffective assistance of trial and appellatecounsel. Such claims are resolved by application of the Strickland standard. Strickland v.Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Claims of ineffectiveassistance of appellate counsel are measured against the same standard as claims of ineffectiveassistance of trial counsel. People v. Caballero, 126 Ill. 2d 248, 269-70 (1989). A defendant mustdemonstrate both a deficiency in counsel's performance and prejudice resulting from the deficiency. People v. Edwards, 195 Ill. 2d 142, 162 (2001), citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d at693, 104 S. Ct. at 2064. To demonstrate performance deficiency, a defendant must establish thatcounsel's performance fell below an objective standard of reasonableness. Edwards, 195 Ill. 2d at162. Prejudice is demonstrated if there is a reasonable probability that, but for counsel's deficientperformance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694,80 L. Ed. 2d at 698, 104 S. Ct. at 2068. A defendant who claims that appellate counsel wasineffective for failing to raise an issue on appeal must allege facts demonstrating such failure wasobjectively unreasonable and that counsel's decision prejudiced defendant. People v. Enis, 194 Ill.2d 361, 377 (2000). If the underlying issue is meritorious, the defendant has suffered prejudice. Enis, 194 Ill. 2d at 377.

Based on the first-stage procedural posture of the instant case, the relevant question is first,whether the petition alleges a constitutional deprivation, and, second, whether the petition wassubstantively rebutted by the record, rendering it frivolous or patently without merit. 725 ILCS5/122-2.1(West 2000); Coleman, 183 Ill. 2d at 382. We note, in the instant case, Judge Palmer didnot address the merits of the petition, but dismissed the petition for being untimely.

II. PETITION ALLEGES CONSTITUTIONAL DEPRIVATION UNREBUTTED
BY RECORD RENDERING PETITION NEITHER FRIVOLOUS
NOR PATENTLY WITHOUT MERIT

Recognizing that People v. Boclair, 202 Ill. 2d 89 (2002), precludes first-stage dismissalbased on lack of timeliness, the State argues that first-stage dismissal of the petition should beaffirmed: "Therefore, even if Judge Palmer erred in relying on the petition's lack of timeliness as thereason for dismissing it summarily, the petition was also frivolous and patently without merit." InBoclair, our supreme court resolved the issue of whether the circuit court can consider the timelinessof a petition at the first stage of the post-conviction process. Section 122-1 of the Act provides timelimits for filing a post-conviction petition. See 725 ILCS 5/122-1 (West 2000). Boclair held that thetime limit is not jurisdictional but, rather, akin to a statute of limitations. Boclair, 202 Ill. 2d at 98. The supreme court in Boclair held that the time limitations under the Act should be considered anaffirmative defense that can be raised, waived, or forfeited by the State. Boclair, 202 Ill. 2d at 101. Boclair concluded that the issue of timeliness should be left for the State to assert during the secondstage of the post-conviction proceedings. Boclair, 202 Ill. 2d at 101-02. Thus, in the instant case,we conclude that the trial court erred when it dismissed defendant's petition for being untimely.

However, consistent with the terms of the Act and the purpose of the first stage, we addresswhether the petition alleges a constitutional deprivation unrebutted by the record, rendering thepetition neither frivolous nor patently without merit. 725 ILCS 5/122-2.1 (West 2000). Defendantalleges he was denied his right to effective assistance of trial counsel because during plea negotiationshis attorney told him that the maximum sentence he could serve was 30 years. The maximumsentence actually was 60 years because of the mandatory consecutive sentencing provisions applicablein the instant case. In accordance with section 5-8-4(a)(ii) of the Unified Code of Corrections (730ILCS 5/5-8-4(a)(ii) (West 2000)), a consecutive sentence for aggravated sexual assault is mandatoryin the context of the instant case, where defendant was convicted of aggravated criminal sexualassault, home invasion, armed robbery, and armed violence. 730 ILCS 5/5-8-4(a)(ii) (West 2000).

Defendant's unrebutted affidavit states that trial counsel told him that the maximum to whichhe could be sentenced was 30 years in prison. The record reflects trial counsel's statement at thesentencing hearing that "The [S]tate is asking based on the same occurrence for all these Class X'sof which they charge, the same occurrence they are asking for consecutive sentences which wemaintain is improper." However, that assertion made by trial counsel is in conflict with the applicablelaw contained in the subsection (ii) sentencing provision of section 5-8-4(a) regarding mandatoryconsecutive sentencing for aggravated sexual assault. Additionally, we note that the docketingstatement filed by trial counsel contends that the "offenses were all allegedly committed during onetransaction and it was error to sentence defendant to a consecutive sentence." That statement is alsoin direct conflict with section 5-8-4(a)(ii).

Defendant claims that he relied on the alleged incorrect information provided by trial counseland rejected an offer to plead guilty in exchange for 22 years in prison because he thought themaximum sentence he could serve was 30 years. Defendant alleged that since he thought he faceda maximum sentence of 30 years, which was only 8 years more than he was offered in return for aguilty plea, he decided to go to trial. He indicated that he would have accepted the plea offer had heknown that he could be sentenced consecutively to a maximum of 60 years.

In the context of the ineffective assistance claim regarding trial counsel, the issue to bedetermined is whether the petition alleges a constitutional deprivation unrebutted by the recordrendering the petition neither frivolous nor patently without merit. Coleman, 183 Ill. 2d at 382. Regarding ineffective assistance of counsel, a defendant must demonstrate both a deficiency incounsel's performance and prejudice resulting from the deficiency. Edwards, 195 Ill. 2d at 162, citingStrickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104. S. Ct. at 2064. To demonstrate performancedeficiency, a defendant must establish that counsel's performance was below an objective standardof reasonableness. Edwards, 195 Ill. 2d at 162. Prejudice is demonstrated if there is a reasonableprobability that, but for counsel's deficient performance, the result of the proceeding would have beendifferent. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104. S. Ct. at 2068.

In determining whether, having received a plea offer, defense counsel's deficient performancedeprived defendant of his right to be reasonably informed as to the direct consequences of acceptingor rejecting that offer, a defendant must demonstrate that there is a reasonable probability that, absenthis attorney's deficient advice, he would have accepted the plea offer. People v. Curry, 178 Ill. 2d509, 517-18 (1997). In the instant case, we note the petition alleged that defendant would haveaccepted the 22-year plea offer rather than proceed to trial had he known he could have beensentenced consecutively to a maximum of 60 years. That allegation is not rebutted by the record. As previously discussed, the alleged incorrect advice provided by trial counsel is likewise not rebuttedby the record.

We note a similar issue was addressed in People v. Rogers, 197 Ill. 2d 216 (2001). However,unlike the instant case, the record in Rogers substantively rebutted defendant's claim that he wasnever correctly advised of the possible length of his sentence. Rogers, 197 Ill. 2d at 222. Based onthe record, Rogers found that the trial court correctly dismissed the claim. Rogers, 197 Ill. 2d at 222. Unlike Rogers, based on our review of the record, we find defendant has alleged a constitutionaldeprivation unrebutted by the record at this first stage of the post-conviction process.

In the instant case, the entire petition should be docketed for second-stage review. In accordwith People v. Rivera, 198 Ill. 2d 364, 370-71 (2001), the Act does not provide for partial dismissal. If any one allegation states the gist of a constitutional deprivation, the entire petition should bedocketed for second-stage review pursuant to sections 122-4 through 122-6 of the Act. Rivera, 198Ill. 2d at 370-71. Section 122-5 provides that if a petition survives first-stage dismissal, then "theState shall answer or move to dismiss. In the event that a motion to dismiss is filed and denied, theState must file an answer within 20 days after such denial." 725 ILCS 5/122-5 (West 2000). Amotion to dismiss assumes the truth of the allegations to which it is directed and questions only theirlegal sufficiency. People v. Ward, 187 Ill. 2d 249, 255 (1999). On remand, the entire petition shallbe considered in accordance with sections 122-4 through 122-6 of the Act. 725 ILCS 5/122-4through 122-6 (West 2000). The relevant question at the second stage is whether the allegations ofthe petition supported by the record and accompanying documents demonstrate a substantial showingof a constitutional violation. People v. Edwards, 197 Ill. 2d 239, 245-46 (2001).

As previously noted, the untimeliness of a post-conviction petition cannot provide the basisfor first-stage dismissal. People v. Boclair, 202 Ill. 2d 89 (2002). In the instant case, the circuitcourt dismissed the petition based on untimeliness at the first stage of the post-conviction process. However, the circuit court did not have the benefit of the Boclair ruling. The dismissal in the instantcase occurred approximately two weeks before the ruling in Boclair.

We are mindful that the issue of timeliness is properly raised by the State at the second stagein a motion to dismiss. Boclair, 202 Ill. 2d at 99. For the reasons previously discussed, we havevacated the circuit court's dismissal of this first-stage petition and remanded for second-stage review. However, the circuit court, State, and defense have all addressed the issue of timeliness in thecontext of defendant's demonstration of his lack of culpable negligence. In the interest of judicialeconomy, we will resolve that issue to preclude time and resources being wasted at the second stagerevisiting the issue of timeliness in the context of the culpable negligence factor.

The time limitations for filing a post-conviction petition are set forth in section 122-1(c) ofthe Act. 725 ILCS 5/122-1(c) (West 2000). Section 122-1(c) provides:

"(c) No proceedings under this Article shall be commencedmore than 6 months after the denial of a petition for leave to appealor the date for filing such a petition if none is filed or more than 45days after the defendant files his or her brief in the appeal of thesentence before the Illinois Supreme Court (or more than 45 daysafter the deadline for the filing of the defendant's brief with the IllinoisSupreme Court if no brief is filed) or 3 years from the date ofconviction, whichever is sooner, unless the petitioner alleges factsshowing that the delay was not due to his or her culpable negligence."

When the petition in the instant case was filed, in accordance with the statute, the petition wasrequired to be filed by the earliest date among the following: (1) within six months after denial of apetition for leave to appeal, or the last date allowed for such a filing if none was filed; or (2) within45 days of the filing of petitioner's brief in the supreme court, or the last date for filing a brief, if nonewas filed; or (3) within three years of the date of petitioner's conviction. 725 ILCS 5/122-1(c) (West2000). In People v. Woods, 193 Ill. 2d 483, 488 (2000), the Illinois Supreme Court held that, as usedin the Post-Conviction Hearing Act, the word "conviction" is a term of art which means a finaljudgment that includes both a conviction and a sentence.

The applicable date by which the post-conviction petition was required to be filed in theinstant case was the earlier of April 7, 2001 (three years after defendant was sentenced), or June 5,2002 (six months after denial of the petition for leave to appeal). 725 ILCS 5/122-1(c) (West 2000). According to the terms of the Act, the operative date for purposes of filing the post-convictionpetition was April 7, 2001. In the instant case, the petition was filed on May 29, 2002, which wasbeyond three years of the date of defendant's conviction and sentence, but within six months of thedenial of the petition for leave to appeal.

An untimely petition is not subject to dismissal if defendant's delay in filing the petition wasnot the result of defendant's culpable negligence. 725 ILCS 5/122-1(c) (West 2000). As noted bythe Illinois Supreme Court in Boclair, the "culpably negligent" standard contained in section 122-1(c) of the Act "contemplates something greater than ordinary negligence and is akin torecklessness." Boclair, 202 Ill. 2d at 108. This definition is consistent with the long-held view thatthe Act must be "liberally construed to afford a convicted person an opportunity to present questionsof deprivation of constitutional rights." People v. Correa, 108 Ill. 2d 541, 546 (1985).

We must apply that definition to the facts in the instant case and determine whether defendanthas demonstrated that the delay in filing his post-conviction petition was not the result of his culpablenegligence. We review the pertinent facts regarding the question of culpable negligence. Followinga bench trial in the instant case, criminal case number 96 CR 12932, defendant was convicted ofaggravated criminal sexual assault, home invasion, armed robbery, and armed violence. On April 7,1998, the judge imposed a 25-year term in prison for aggravated criminal sexual assault and aconsecutive 25-year term in prison for the other three convictions: home invasion, armed robbery,and armed violence. On May 1, 1998, defendant's motion to reconsider sentence was denied. Defendant's attorney filed a notice of appeal on May 13, 1998, for case number 96 CR 12932.

On June 30, 1998, defendant entered a plea of guilty to the charges of home invasion andattempted aggravated criminal sexual assault in case number 96 CR 12931 and was sentenced to 25and 15 years in prison, respectively, to be served concurrently with the sentence imposed in theinstant case, number 96 CR 12932. After the plea of guilty, defendant retained new counsel. OnFebruary 9, 1999, defendant's new attorney filed an amended motion to vacate or modify the pleain case number 96 CR 12931. That motion was denied on March 25, 1999. A notice of appeal wasfiled in case number 96 CR 12931 on April 5, 1999. We consolidated the appeals of cases 96 CR12931 and 96 CR 12932 on April 21, 1999.

The record on appeal was ordered, but not filed until January 19, 2000. As previously noted,although we consolidated both cases for appeal on April 21, 1999, the record was not filed until ninemonths later on January 19, 2000. On April 15, 2000, defendant's brief was filed, which was withinthree months of the record being filed. Defendant's two consolidated appeals raised nine issues. Ninemonths after defendant filed his brief, the State filed its brief. Within six months, on June 11, 2001,we resolved the two consolidated appeals and affirmed defendant's conviction and sentence. Defendant filed a petition for leave to appeal in the Illinois Supreme Court which was denied onDecember 5, 2001. Post-conviction counsel was retained in March 2002 and counsel filed the post-conviction petition on May 29, 2002, within less than six months of defendant's petition for leave toappeal in the supreme court being denied.

Regarding the definition of culpable negligence as articulated in Boclair, 202 Ill. 2d at 106-08,we note that Boclair found the "culpably negligent" standard "contemplated something greater thanordinary negligence and is akin to recklessness." Boclair, 202 Ill. 2d at 108. We apply that definitionto the facts of the instant case.

In concluding that defendant failed to provide any reason that justified his delay in filing thepost-conviction petition, the circuit court indicated, "It is well settled that a petitioner may not waituntil after his direct appeal is resolved to file his post-conviction petition if the time taken to resolvethe appeal extends beyond three years from the date of judgment." In support of that statement thecircuit court relied on People v. Langston, 342 Ill. App. 3d 1100 (2001) (citing People v. Rissley, No.82536 (March 15, 2001)), and People v. Hager, 314 Ill. App. 3d 951, 954 (2000).

Since the ruling by the circuit court in the instant case, the Illinois Supreme Court granteddefendant's rehearing in Rissley and issued the most recent opinion on June 19, 2003, People v.Rissley, 206 Ill. 2d 403 (2003). Since the time of the circuit court ruling in the instant case, theIllinois Supreme Court reversed the appellate court opinion in Hager (People v. Hager, 202 Ill. 2d143 (2002)), and the appellate court opinion was withdrawn February 28, 2003. See People v.Hager, No. 2-99-0223 (February 28, 2003) (unpublished order pursuant to Supreme Court Rule 23).

Regarding the issue of culpable negligence, we note the Illinois Supreme Court in Rissleymost recently indicated that, "Although we adhere to our original construction of the statute, and findthat defendant's petition was untimely filed, we agree with defendant that our original opinion failedto provide a workable definition of the term 'culpable negligence' so as to provide the necessaryguidance to our lower courts." Rissley, 206 Ill. 2d at 409. Rissley went on to provide an extensivediscussion of the meaning of the term "culpable negligence." Rissley, 206 Ill. 2d at 418-21. We noteit was the original opinions in Rissley and Hager that the circuit court relied on in resolving the issueof culpable negligence as it related to timeliness in the instant case. The circuit court did not havethe benefit of the Rissley opinion, issued on June 19, 2003, which fully analyzed the culpablenegligence factor in the context of timeliness, taking into consideration Boclair's discussion of themeaning of the term "culpable negligence." Rissley, 206 Ill. 2d at 418-21, citing Boclair, 202 Ill. 2dat 106-08.

In Rissley, the Illinois Supreme Court found the petition was untimely and therefore focusedon whether the defendant demonstrated a lack of culpable negligence so as to avoid dismissal basedon untimeliness. Rissley, 206 Ill. 2d at 418. The court noted that resolution of that issue dependedupon the meaning of the term "culpable negligence" and extensively discussed that term, including Boclair's finding that " ' "culpably negligent" *** contemplates something greater than ordinarynegligence and is akin to recklessness.' " Rissley, 206 Ill. 2d at 420, quoting Boclair, 202 Ill. 2d at108. Rissley concluded:

"We continue to adhere to the definition enunciated in Boclair. Thisdefinition more than adequately ensures that the portion of the statutepermitting a petitioner to file an untimely petition so long as she'alleges facts showing that the delay was not due to his culpablenegligence' [citation] does not stand as empty rhetoric. Rather, thedefinition gives heft to the exception contained in section 122-1, anexception which this court has historically viewed as the 'special"safety valve" ' in the Act. [Citations.]" Rissley, 206 Ill. 2d at 420.

We are mindful of the fact as recognized by Rissley that "post-conviction petitions mustsometimes be filed before the termination of proceedings on direct appeal." Rissley, 206 Ill. 2d at415. This is not such a case. The instant case presented a complex consolidated appeal raising nineissues. The various amounts of time taken by the clerk of the circuit court, the State, the defense,and this court in resolving the instant appeal have been previously detailed. In the context of theinstant case, it would be unreasonable to require the defendant to hire a new counsel to review thework of his appellate counsel while the direct appeal was in the process of being resolved. The ninemonths required to obtain the record in both cases, the case consolidation, and the complexity of theconsolidated cases together contributed to the delay in the termination of proceedings on directappeal. Based on the totality of the circumstances, the record does not reflect the untimely filing ofthe petition in the instant case was the result of "something greater than ordinary negligence [that]is akin to recklessness." Boclair, 202 Ill. 2d at 108.

In the factual context of the instant case, we agree with the conclusion reached in People v.Ivy, 313 Ill. App. 3d 1011, 1016 (2000):

"We are not prepared to require a defendant to file a post-conviction petition while the decision of this court on direct appeal ispending in order to be within the three-year limitations period fromthe original imposition of sentence. An otherwise diligent defendantshould not be penalized in the filing of a post-conviction petition forthe length of time it takes his attorneys, the State, and this court toprocess a direct appeal. Therefore, we find defendant's petition forpost-conviction relief was not barred by section 122-1(c) but wastimely filed."

In the instant case, we are mindful that the post-conviction petition alleges ineffectiveassistance of both trial and appellate counsel. Attached to the post-conviction petition is defendant'saffidavit, excerpts from the hearing on the motion to withdraw his guilty plea, and the brief filed byhis appellate counsel. While the appeal was pending, defendant was relying on the advice andrepresentation of appellate counsel. In the context of the instant case, where the petition allegesineffective assistance of appellate counsel, we are not inclined to require the defendant to file a post-conviction petition alleging ineffective assistance of appellate counsel while his direct appeal ispending.

Moreover, we are mindful that our supreme court has held section 122-3 of the Act expresslyrequires courts to apply the procedural bar of waiver when reviewing claims asserted in a successivepost-conviction petition. People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002). Requiring defendantto file a post-conviction petition while his direct appeal is pending will cause piecemeal litigation andmay preclude defendant from raising legitimate allegations of constitutional deprivations due to thesuccessive petition waiver rule. People v. Britt-El, 206 Ill. 2d 331 (2002). After reviewing the factsof the instant case, together with the Boclair definition of culpable negligence, as reaffirmed inRissley, we conclude the circuit court erred in finding defendant failed to provide any reason thatjustified the delay in filing his post-conviction petition.

Defendant argues that both Judge Palmer and Judge McSweeney Moore erred by refusing hisrequests that a judge other than Judge Palmer preside over his post-conviction petition. Usually thesame judge who presided over the original proceeding resolves the post-conviction petition. Peoplev. Madej, 177 Ill. 2d 116, 163-64 (1997). However, if a judge is biased or prejudiced againstdefendant, or may be a witness during the post-conviction proceedings, recusal may be required. People v. Steidl, 177 Ill. 2d 239, 266 (1997); People v. Wilson, 37 Ill. 2d 617, 621 (1967).

The defendant relies on the disparity between the sentence offered during plea bargaining andthat ultimately imposed to support his argument that Judge Palmer should have recused himself andJudge McSweeney Moore should have granted his motion for substitution of judge. Where there isa disparity between the sentence imposed and the sentence offered in exchange for a guilty plea, therecord must demonstrate the greater sentence was imposed punitively in order to require the judgebe removed from the case. People v. Perry, 47 Ill. 2d 402, 408 (1971).

In the instant case, Judge Palmer noted the statute mandated consecutive sentencing becauseof the sex offenses involved. The experienced trial judge properly considered aggravation, mitigation,the presentence report, the nature of the offense, and the defendant's history. Defendant was notentitled to Judge Palmer's recusal or a substitution of judge for cause because the record fails todemonstrate defendant's argument that Judge Palmer was biased or prejudiced against him. Peoplev. Carroll, 260 Ill. App. 3d 319, 348 (1992).

CONCLUSION

For the reasons previously discussed, the entire petition should advance to the second stageof the post-conviction process. The petition is not frivolous or patently without merit, but alleges aconstitutional violation that is not rebutted by the record. Delay in filing the petition was not due todefendant's culpable negligence. The time limitations under the Act should not be interpreted so asto deny a defendant a fair hearing or defeat the purpose of the Act. People v. Hudson, 65 Ill. App.3d 422, 429 (1978). The Act must be " 'liberally construed to afford a convicted person anopportunity to present questions of deprivations of constitutional rights.' [Citation.]" Rissley, 206Ill. 2d at 421. We believe under the circumstances of this case, defendant demonstrated that theuntimeliness of his petition was not due to his culpable negligence.

We remand for proceedings under the Post-Conviction Hearing Act in accordance withsections 122-4 through 122-6 consistent with this opinion. 725 ILCS 5/122-4 through 122-6 (West2000).

Reversed and remanded.

GALLAGHER and SMITH, JJ., concur.