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FIRST DIVISION
February 9, 2003

No. 1-01-3910

Defendant Michael Peoples appeals from an order of thecircuit court granting the State's motion to dismiss his petitionfor relief under the Post-Conviction Hearing Act (Act) (725 ILCS5/122-1 et seq. (West 2000)). On appeal, defendant contends thedismissal must be reversed and the case remanded because therecord fails to affirmatively show that defendant's appointedcounsel complied with the requirements of Supreme Court Rule651(c). 134 Ill. 2d R. 651(c). We reverse and remand withdirections.

At the bench trial, Officer Stoll's testimony establishedthat on the evening of March 16, 1997, defendant engaged in three separate hand-to-hand narcotics transactions. During each transaction, defendant exchanged items he obtained from a garbagecan located at 4226 West Maypole for money. After thetransactions, defendant left the packages in the garbage can andwalked to 120 North Karlov. As Officer Stoll arrested defendantat 120 North Karlov, he saw his partner, Officer Kirk, recover abag from the garbage can at 4226 West Maypole. The partiesstipulated that 14 tinfoil packages were recovered, and one ofthe packages randomly selected tested positive for heroin.

The court convicted defendant of possession of a controlledsubstance with intent to deliver. On December 16, 1997, thecourt sentenced defendant to six years in prison, to runconsecutively to two consecutive six-year sentences imposed intwo separate cases (No. 97 CR 11213 and No. 97 CR 14892).⁽¹⁾

On direct appeal, the public defender filed a motion forleave to withdraw as defendant's appellate counsel and submitteda brief in support of the motion pursuant to Anders v.California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396(1967). Defendant received copies of the brief and motion andwas advised he had until August 18, 1998, to file a response. Onthat date, defendant filed a response. This court granted themotion and mistakenly noted that defendant failed to respond. People v. Peoples, No. 1-98-0124 (1998) (unpublished order underSupreme Court Rule 23).

On June 12, 2000, defendant mailed his pro se postconvictionpetition, essentially alleging his trial counsel was ineffectivebecause during pretrial investigation counsel failed to interviewthe State's witness and visit the crime scene. Defendant allegedthat if counsel had conducted the proper pretrial investigation,counsel would have learned that it was impossible for OfficerStoll to see 4226 West Maypole from 120 North Karlov. Defendantfurther alleged that the evidence was insufficient, the Stateknowingly used perjured testimony, appellate counsel wasineffective for filing an Anders without first consulting him,and he was denied the right to appeal. Defendant attached hisown affidavit and those of three individuals. All four affiantsattested that it was impossible to see 4226 West Maypole from 120North Karlov. Subsequently, the trial court appointedpostconviction counsel for defendant.

The State then filed a motion to dismiss defendant's pro sepetition, first asserting that the petition was not timely filedand defendant did not allege any facts to show that the delay wasnot due to his culpable negligence. In the alternative, theState contended that the allegations in the pro se petition werewaived, were refuted by the result of the direct appeal, and weremerely conclusional.

Defendant's appointed postconviction counsel filed aresponse entitled "Defendant's Partial Response to State's Motionto Dismiss (Statu[t]e of Limitations)," asserting that defendantwas unaware of the deadline for filing a postconviction petition. In support of this assertion, postconviction counsel attacheddefendant's affidavit attesting that he was unaware of the filingdeadline for his postconviction petition until November orDecember 1999 when law clerks and other inmates informed him ofthe deadline. Postconviction counsel also contended that itwould be inequitable to strictly apply the filing deadline todefendant because he was denied the right to raise the issues ondirect appeal. Postconviction counsel further asserted thatdefendant did not waive the issues in his petition because theappellate court affirmed his conviction based on Anders withoutaddressing or even acknowledging his pro se response, and theappellate court and his appellate counsel effectively denied himhis right to appeal. In support of these allegations,defendant's affidavit attested that the appellate court decidedthe Anders motion without addressing his pro se response. Alsoattached to the response was the affidavit of an investigator forthe public defender's office, Stephanie Turner, attesting thatshe visited the crime scene at night and determined it wasimpossible to see 4226 West Maypole from 120 North Karlov. Defendant's postconviction counsel requested "that the State'sMotion to Dismiss be denied on the basis of the Statute ofLimitations and that counsel for petitioner be allowed tocomplete fulfillment of her obligations under Supreme Court Rule651(c)."

At the hearing on the State's motion to dismiss, the courtasked defendant's postconviction counsel why she was entitled tofile a partial response. Counsel replied as follows:

"I basically responded in major part to theState [sic] of Limitations issue, becausebefore I put a substantial amount of workinto the case, I wanted to get the Court'sruling with regard to the State [sic] ofLimitations issue. Normally if there was noState [sic] of Limitations issue, I wouldprobably file a supplemental petition onbehalf of the client and, you know,supplement his original petition. Butbecause the State raised the issue of theState [sic] of Limitations as a bar toproceeding on the case, I just addressed thatissue."

Postconviction counsel further stated that her response to theState's motion to dismiss was the complete "supplemental" as itrelated to the statute of limitations. The court granted theState's motion finding "the petition and supplemental petitionfor post conviction relief" failed to allege facts showing theuntimely filing was not due to defendant's culpable negligence.

On appeal, defendant contends the dismissal must be reversedand the case remanded because defendant's postconviction counseldid not file a Rule 651(c) certificate, and the record does notaffirmatively show that defendant's appointed counsel compliedwith the requirements of Rule 651(c). 134 Ill. 2d R. 651(c). Specifically, defendant asserts that postconviction counselfailed to expand the legal and factual arguments in defendant'spetition; her contact with defendant did not include ascertaininghis contentions of deprivation of constitutional rights; sheinappropriately limited her compliance with Rule 651(c) by onlyaddressing the statute of limitations issue; and she failed toattach an affidavit from trial counsel concerning her pretrialinvestigation. Defendant concedes that postconviction counsel"substantially complied with the requirement that she examine therelevant portions of the trial record" and, therefore, was in"compliance with the record-reading requirement of Rule 651(c)."

A defendant is not entitled to effective assistance ofcounsel at a postconviction proceeding but, is, however, entitledto a reasonable level of assistance. People v. Guest, 166 Ill.2d 381, 412 (1995). Allegations of unreasonable assistance bypostconviction counsel do not present a constitutional basis uponwhich relief can be granted under the Act. People v. Jones, 321Ill. App. 3d 515, 519 (2001).

Supreme Court Rule 651 governs appeals of postconvictionproceedings and imposes requirements on postconviction counsel. 341 Ill. 2d R. 651(c). Rule 651 provides that the record shallshow that the counsel consulted with the defendant either by mailor in person to ascertain his contentions of deprivation ofconstitutional rights, examined the trial record, and madeamendments to the pro se petition which were necessary for anadequate presentation of the defendant's contentions. 134 Ill.2d R. 651(c). Such showing may be made by the certificate of thedefendant's counsel. 134 Ill. 2d R. 651(c). However, theabsence of a Rule 651(c) certificate is harmless if the recordshows that counsel abided by the rule's requirements. People v.Edwards, 291 Ill. App. 3d 476, 487 (1997). Appointed counselneed only make those amendments that are necessary for theadequate presentation of the defendant's claims. People v.Turner, 187 Ill. 2d 406, 412 (1999).

Here, postconviction counsel failed to file a Rule 651(c)certificate and asked in her response to the State's motion todismiss that she "be allowed to complete" her obligations underRule 651(c). Furthermore, at the hearing on the State's motionto dismiss, counsel stated that she responded primarily to thestatute of limitations issue only because the State was assertinguntimeliness as a procedural bar. Postconviction counselexpressly asserted that she did not want to put forth "asubstantial amount of work into the case" unless she overcame thestatute of limitations issue. Based on this record, we find thatpostconviction counsel failed to adequately comply with Rule651(c).

The basic flaw in the instant second-stage postconvictionmatter and the attendant duty of post-conviction counsel underRule 651(c) derives from the supreme court's decisions in Peoplev. Wright, 189 Ill. 2d 1 (1999), and People v. Boclair, 202 Ill.2d 89 (2002). In Wright, the supreme court held that time is notan inherent element of the defendant's right to bring apostconviction petition because the time limit in the Act is astatute of limitations, not a jurisdictional prerequisite. Accordingly, the Wright court found "that matters relating to thetimeliness of a defendant's petition should first be consideredin the trial court, either upon a motion by the State or pursuantto the duty imposed upon the trial court by" the Act. Wright,189 Ill. 2d at 11-12.

In Boclair, the supreme court expressly held that thetimeliness issue must be reserved for the second stage ofpostconviction proceedings and found that under Wright, "timelimitations in the Act should be considered as an affirmativedefense and can be raised, waived, or forfeited, by the State." Boclair, 202 Ill. 2d at 101. The supreme court further opinedthat the State could or should waive the timeliness bar wherewarranted: "If an untimely petition demonstrates that a defendantsuffered a deprivation of constitutional magnitude, a dutifulprosecutor may waive that procedural defect during the secondstage of the post-conviction proceedings." Boclair, 202 Ill. 2dat 101-02.

The State's postconviction responsibility to considerforfeiting the procedural bar of untimeliness necessarilyprovokes a concomitant duty on the part of postconviction counselto completely fulfill his or her duty under Rule 651(c) beforethe procedural bar of untimeliness is addressed by the State. Ifthe untimely postconviction petition, as possibly amended orsupplemented by postconviction counsel under Rule 651(c),presents "a deprivation of constitutional magnitude" on the partof the defendant, then the State may waive the time bar. On theother hand, if the untimely postconviction petition, as possiblyamended or supplemented by postconviction counsel, does not showsuch a constitutional deprivation, then the State is free toraise the time bar. Either way, the State cannot determinewhether to waive or raise the time bar unless and untilpostconviction counsel completely fulfills the duties promulgatedin Rule 651(c).

In light of Wright and Boclair, postconviction counsel inthe instant case was misguided in engaging in a wait-and-see gameregarding the untimeliness issue. Postconviction counselbelieved that she should wait for the court's ruling on thetimeliness issue before filing a supplemental petition. Postconviction counsel's position not only contravenes theholdings in Wright and Boclair, but also, in effect, envisions abifurcated second-stage postconviction hearing, with oneproceeding to determine the time bar issue and a secondproceeding to consider the substance of the post-convictionallegations. No authority suggests such a bifurcated procedure.

For all the foregoing reasons, we find that postconvictioncounsel's admitted failure to comply with Rule 651(c) prior tothe State filing its motion to dismiss fell below the standard ofreasonable assistance. Accordingly, we reverse the trial court'sorder granting the State's motion to dismiss defendant'spostconviction petition and remand for an evidentiary hearing. On remand, counsel is directed to comply with the requirements ofRule 651(c), and should amend defendant's petition, as necessaryfor adequate presentation, after consulting with defendant toascertain his contentions of deprivation of constitutionalrights. People v. Johnson, 338 Ill. App. 3d 1004, 1009 (2003).

Reversed and remanded with directions.

O'MALLEY, P.J., and McBRIDE, J., concur.

1. No. 97 CR 11213 and No. 97 CR 14892 are not included inthis appeal.