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Docket No. 98433-Agenda 7-March 2005.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DONALD A. LANDER, Appellant.

Opinion filed June 3, 2005.

JUSTICE KILBRIDE delivered the opinion of the court:

In this appeal, we consider whether: (1) defendant Donald A.Lander's court-appointed attorneys were required to comply withSupreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), when his pro sepostconviction petition was not timely filed; and (2) the allegations indefendant's pleadings were sufficient to establish the delay in filingwas not due to his culpable negligence. We hold that defendant'sattorneys were required to comply with Rule 651(c) in thesecircumstances, and defendant failed to establish he was not culpablynegligent in the late filing. Accordingly, we reverse the judgmentsbelow and remand to the circuit court for further postconvictionproceedings.

I. BACKGROUND

Defendant Donald A. Lander was convicted of aggravatedbattery of a child (720 ILCS 5/12-4.3(a) (West 1994)) and sentencedto 18 years' imprisonment. In a decision filed on March 15, 2000, theappellate court affirmed defendant's conviction and sentence. Peoplev. Lander, No. 3-98-0698 (2000) (unpublished order under SupremeCourt Rule 23). On August 13, 2001, defendant filed a pro sepostconviction petition alleging he received ineffective assistance ofcounsel at his trial and on direct appeal. Defendant's postconvictionpetition was accompanied by a motion for leave to file a late petition.

In his motion, defendant alleged he spoke with a law clerkemployed by the prison and several "jailhouse lawyers" when hearrived at Western Illinois Correctional Center (Western) in 1997.Defendant was informed by these various individuals that he wasallowed three years after the date of the last court decision to file apostconviction petition. The law clerk and jailhouse lawyers alsoallegedly informed defendant that he could file affidavits with thecourt and they would be treated as a postconviction petition.Defendant alleged he filed affidavits in the trial court in December1998 and March 1999, believing they would be treated as apostconviction petition.

Defendant further alleged he was transferred to TaylorvilleCorrectional Center (Taylorville) in May 2000. When he arrived,defendant spoke with a staff member in the law library who stated lawclerks had not been available at the prison for the past six months.Defendant then informed the prison librarian of the advice he hadreceived from the law clerk and jailhouse lawyers at Western. Theprison librarian confirmed defendant was allowed three years after thedate of the appellate court decision to file his postconviction petitionand that the affidavits he filed would be treated as a postconvictionpetition. Defendant alleged he was unaware of the deadline for filinga postconviction petition due to his lack of legal knowledge.

At the first stage of the proceedings, the trial court founddefendant's pro se petition was not frivolous or patently without merit(725 ILCS 5/122-2.1(a)(2) (West 2000)). The court appointed twoattorneys to represent defendant. Defendant's appointed counsel thenfiled an amended motion for leave to file a postconviction petition,asserting defendant's pro se petition was in fact timely filed. In asubsequently filed second amended motion prepared by defendant'sattorneys, defendant sought to withdraw his amended motion andrestated more specifically the allegations in his previous pro se motionfor leave to file a late petition. In particular, defendant alleged that inOctober 1997, he spoke with a law clerk at Western who stated thetime for filing a postconviction petition did not expire until three yearsafter the last court rendered a decision. Defendant identified HaroldAnderson as an "inmate and jailhouse lawyer" at Western who stateddefendant could file affidavits that would be treated by the court as apostconviction petition. Defendant alleged Kimberly Wells, SherryWells, and Lori Ann Lander filed affidavits on his behalf in December1998 and March 1999, asserting someone other than defendant wasresponsible for the victim's injuries.

The second amended motion also identified Dwayne Purble as the"librarian or paralegal" in the Taylorville law library who advised himthat he had three years after the appellate court decision was issued tofile his petition and that the affidavits filed with the trial court wouldbe treated as a postconviction petition. Defendant asserted he was notinformed by his trial or appellate counsel of the deadline for filing apostconviction petition, and he relied in good faith on the advice ofthe only people available with purported knowledge of the law.

No amended postconviction petition was ever filed. The Statefiled a "motion to dismiss petitioner's second amended motion forleave to file a late petition for postconviction relief." In its motion, theState sought dismissal of defendant's postconviction petition asuntimely. Following a hearing, the trial court found the petition wasuntimely and defendant had failed to establish the delay in filing wasnot due to his culpable negligence. Accordingly, the trial court denieddefendant's second amended motion for leave to file a latepostconviction petition and granted the State's motion to dismissdefendant's pro se petition.

On appeal, defendant argued he was deprived of his right toreasonable assistance of counsel because his attorneys failed to complywith Rule 651(c) and that he alleged sufficient facts to establish thedelay in filing his petition was not due to his culpable negligence. Theappellate court held the Rule 651(c) consultation requirement did notapply in this case because counsel was required to argue successfullythe late filing was not due to defendant's culpable negligence beforethe merits of the petition could be addressed. Therefore, counsel hadno obligation to consult with defendant to ascertain his claims ofconstitutional deprivation until after the time bar was overcome. Theappellate court further noted counsel included specific dates andnames in the second amended motion in an effort to show the latefiling was not due to defendant's culpable negligence. According tothe appellate court, these actions demonstrated that counsel consultedwith defendant and made any necessary amendments to his petition asrequired by Rule 651(c).

In reviewing defendant's claim that he was misinformed byvarious lay people concerning the filing deadline for his postconvictionpetition, the appellate court held these allegations were insufficient todemonstrate the delay in filing was not due to his culpable negligence.The appellate court therefore affirmed the judgment of the circuitcourt. No. 3-02-0436 (unpublished order under Supreme Court Rule23). We granted defendant's petition for leave to appeal (177 Ill. 2dR. 315(a)).

II. ANALYSIS

In this appeal, defendant contends the untimeliness of his pro sepostconviction petition did not excuse his attorneys from fulfillingtheir duties under Rule 651(c) and that he was denied reasonableassistance of counsel due to their failure to comply with the rule. TheState contends defendant's substantive claims could not have beenpresented until the time bar was overcome and, therefore, hisattorneys had no obligation to comply with Rule 651(c) until theywere granted leave to file a late petition. The State also asserts theactions of defense counsel were reasonable under the circumstancesand fulfilled the requirements of Rule 651(c).

When a postconviction petition is dismissed without anevidentiary hearing, our review is de novo. People v. Coleman, 183Ill. 2d 366, 388-89 (1998). An indigent defendant is entitled toappointed counsel in postconviction proceedings if the petition is notsummarily dismissed as frivolous or patently without merit. 725 ILCS5/122-4 (West 2000). A defendant is entitled only to the level ofassistance required by the Act, however, because the right to counselis wholly statutory and is not mandated by the Constitution. People v.Turner, 187 Ill. 2d 406, 410 (1999); People v. Williams, 186 Ill. 2d55, 60 (1999). The Act requires postconviction counsel to provide a"reasonable level of assistance" to a defendant. (Emphasis omitted.)People v. Owens, 139 Ill. 2d 351, 364 (1990).

Supreme Court Rule 651(c) imposes specific obligations onpostconviction counsel to assure the reasonable level of assistancerequired by the Act. Turner, 187 Ill. 2d at 410. Rule 651(c) requiresthat the record show counsel has: (1) consulted with the defendanteither by mail or in person to ascertain his claims of deprivation ofconstitutional rights; (2) examined the record of the trial courtproceedings; and (3) made any amendments to the pro se petitionnecessary for an adequate presentation of the defendant's contentions.134 Ill. 2d R. 651(c). Compliance with the duties set forth in Rule651(c) is mandatory (People v. Munson, 206 Ill. 2d 104, 137 (2002)),and may be shown by a certificate filed by postconviction counsel. 134Ill. 2d R. 651(c). The failure to file a certificate showing compliancewith Rule 651(c) is harmless error if the record demonstrates thatcounsel adequately fulfilled the required duties. Williams, 186 Ill. 2dat 59 n.1.

We hold that defendant's attorneys were required to comply withRule 651(c) despite the untimeliness of defendant's pro se petition.We note this court has held the time requirement for filing apostconviction petition is considered an affirmative defense that maybe raised, waived, or forfeited by the State. People v. Boclair, 202 Ill.2d 89, 101 (2002). A dutiful prosecutor may waive this defense at thesecond stage of the postconviction proceedings if an untimely petitiondemonstrates the defendant suffered a deprivation of constitutionalmagnitude. Boclair, 202 Ill. 2d at 101-02.

Our holding in Boclair necessarily leads to the conclusion thatRule 651(c) applies in these circumstances. In Boclair, we establishedthat the State may determine at the second stage of the proceedingswhether to raise or waive the affirmative defense of untimeliness. Aprosecutor would have no reason to waive this affirmative defense ifa meritorious constitutional claim is not presented in the petition. Inorder to present defendant's constitutional claims adequately,postconviction counsel must fully comply with the requirements ofRule 651(c). Therefore, to assure the reasonable assistance of counselmandated by the Act, postconviction counsel must comply with Rule651(c) and submit defendant's substantive claims to the State to givethe prosecutor an opportunity to determine whether they are sufficientto merit the State's waiver of the affirmative defense of untimeliness.Accordingly, the untimeliness of defendant's petition did not excusepostconviction counsel from fulfilling their duties under Rule 651(c).

In this case, counsel did not file a certificate showing compliancewith Rule 651(c) and the record does not demonstrate counsel fulfilledthe required duties. The only evidence in the record indicating counselmay have consulted with defendant is contained in the secondamended motion seeking leave to file a late petition. The allegationscontained in that motion, however, only relate to the timeliness of thepetition and whether defendant was culpably negligent in the latefiling. Thus, even if these allegations are sufficient to showconsultation occurred, they clearly do not demonstrate that counselconsulted with defendant to ascertain his claims of constitutionaldeprivation as required by Rule 651(c).

The failure to comply with the consultation requirement in itselfdemonstrates noncompliance with Rule 651(c). Therefore, we neednot discuss whether counsel fulfilled the other duties under Rule651(c). We conclude the performance of defendant's postconvictioncounsel was unreasonable and fell below the level of assistancemandated by Rule 651(c). This matter must be remanded to the circuitcourt for further postconviction proceedings where defendant isentitled to receive reasonable assistance of counsel.

Defendant also contends the circuit court erred in dismissing hispetition as untimely at the second stage of the proceedings. Defendantconcedes his petition was filed outside the time limitation period of theAct (725 ILCS 5/122-1(c) (West 2000)), but argues he allegedsufficient facts to show the delay was not due to his culpablenegligence. Defendant asserts his good-faith reliance on the advice of"jailhouse lawyers," a prison law clerk, and a law librarian wasreasonable and cannot be considered culpable negligence. In response,the State contends it was defendant's sole responsibility to ensure hispostconviction petition was timely filed and he could have determinedthe applicable time period by a cursory review of the Act. Accordingto the State, defendant's reliance on the advice of lay people wasunreasonable and is not sufficient to show the late filing was not dueto his culpable negligence.

When reviewing a motion to dismiss at the second stage of theproceedings, we accept as true all factual allegations that are notpositively rebutted by the record. People v. Childress, 191 Ill. 2d 168,174 (2000). As previously stated, we review the dismissal of apostconviction petition without an evidentiary hearing de novo.Coleman, 183 Ill. 2d at 388-89.

Postconviction proceedings may not be commenced outside thetime limitation period in the Act unless the defendant alleges sufficientfacts to show the delay in filing was not due to the defendant'sculpable negligence. 725 ILCS 5/122-1(c) (West 2000). In Boclair,this court examined the meaning of the term "culpable negligence" inthe Act. Boclair, 202 Ill. 2d at 106-08. In doing so, we revieweddefinitions of this term from several sources. These definitionsgenerally showed culpable negligence entails blameable neglectinvolving " 'a disregard of the consequences likely to result from one'sactions.' " Boclair, 202 Ill. 2d at 106, quoting Black's Law Dictionary1056 (7th ed. 1999). Accordingly, we concluded the culpablenegligence standard in the Act "contemplates something greater thanordinary negligence and is akin to recklessness." Boclair, 202 Ill. 2dat 108.

Defendant relies heavily on this court's recent decision in Peoplev. Rissley, 206 Ill. 2d 403 (2003), in arguing that the facts here showthe delay in filing was not due to his culpable negligence. In Rissley,the defendant alleged the attorney who represented him in his directappeal contacted him and informed him any postconviction proceedingwould have to be filed within three years after the date of hisconviction. Rissley, 206 Ill. 2d at 417-18. In an attached affidavit, thedefendant's direct appeal counsel confirmed he gave the defendant thisadvice. Rissley, 206 Ill. 2d at 418. We found the defendant had noreason to question the advice he received from his direct appealcounsel. Based on this advice, the defendant reasonably believed hehad timely filed his petition. Rissley, 206 Ill. 2d at 421. Applying thestandard from Boclair, we found the defendant's conduct could notfairly be viewed as blameable and did not evince an indifference to thelikely consequences. Rissley, 206 Ill. 2d at 421. Accordingly, we heldthe defendant had established the delay in filing his petition was notdue to his culpable negligence. Rissley, 206 Ill. 2d at 421.

In this case, defendant alleged he received erroneous advice as tothe filing deadline for his petition from a law clerk employed by theprison and several "jailhouse lawyers." This advice was subsequentlyconfirmed by Dwayne Purble, who was identified as a "librarian orparalegal" at Taylorville. The remaining allegations in defendant'spleadings do not pertain to the filing deadline or the reason fordefendant's late filing.

We find that this case is distinguishable from Rissley. In Rissley,the defendant was not culpably negligent in the late filing because hereasonably relied on the advice of his attorney on direct appeal, aperson who had obvious expertise in legal matters and, in particular,criminal appeals. Rissley, 206 Ill. 2d at 421. In contrast, defendant didnot allege sufficient facts to show his reliance on the advice ofjailhouse lawyers, a prison law clerk, and a law librarian or paralegalwas reasonable. While defendant argues his reliance on the advice ofthe law clerk and law librarian was reasonable because they wereemployed in the prison library system, he did not allege in hispleadings that these individuals were hired to assist inmates withpostconviction matters. Further, defendant did not allege the jailhouselawyers, law clerk or librarian had any particular training inpostconviction matters providing them with specialized knowledge ofthe filing deadline for a postconviction petition. We cannot finddefendant's reliance on the advice of these individuals was reasonablewhen there are no facts to show they had any specialized knowledgein postconviction matters.

Moreover, defendant alleged he sought advice concerning thedeadline for filing his petition from the librarian at Taylorville after hehad previously received advice on this same matter from jailhouselawyers and a law clerk at Western. Defendant's actions show hequestioned the advice he received from the jailhouse lawyers and lawclerk because he continued to seek other advice concerning thedeadline for filing his petition. Thus, defendant's own conductindicates his reliance on the advice of the jailhouse lawyers and lawclerk was not reasonable.

It is well settled that all citizens are charged with knowledge ofthe law. Boclair, 202 Ill. 2d at 104, quoting Atkins v. Parker, 472U.S. 115, 130, 86 L. Ed. 2d 81, 93, 105 S. Ct. 2520, 2529 (1985).Ignorance of the law or legal rights will not excuse a delay in filing alawsuit. Boclair, 202 Ill. 2d at 104-05, quoting Pyle v. Ferrell, 12 Ill.2d 547, 555 (1958). Thus, the sole obligation of knowing the timerequirements for filing a postconviction petition remains with thedefendant. Defendant's entrustment of this responsibility to jailhouselawyers, a prison law clerk, and a law librarian who had no provenspecialized knowledge in postconviction matters shows an indifferenceto the consequences likely to follow from his actions.

We caution that our determination in this regard is fact-specificand is not amenable to an easily defined standard or rule. Rather, eachcase must be examined on its own facts. Based on the specific facts ofthis case, we conclude defendant's reliance on the advice of jailhouselawyers, a law clerk, and a law librarian is insufficient to establish thedelay in filing was not due to defendant's culpable negligence.

Finally, defendant, in a brief and conclusory argument, asserts aviolation of his constitutional right to equal protection of the law.Defendant claims allowing an exception to the time requirement for adefendant who relies on the advice of an attorney, but refusing toallow such an exception for those who rely on the erroneous adviceof prison law librarians or law clerks, results in a deprivation of hisright to equal protection.

The equal protection guarantee requires the government to treatsimilarly situated individuals in a similar manner. In re Adoption ofL.T.M., 214 Ill. 2d 60, 74 (2005), quoting In re R.C., 195 Ill. 2d 291,309 (2001). State action is a prerequisite to invoking the equalprotection clause. L.T.M., 214 Ill. 2d at 73.

Defendant apparently argues the defendant in Rissley received abenefit of counsel that was not available to him in this case. The legaladvice given by direct appeal counsel in Rissley, however, was purelyvoluntary. See Rissley, 206 Ill. 2d at 417-18. Defendant has beentreated the same as other defendants in not being appointed counselat the first stage of postconviction proceedings. We find the equalprotection clause does not apply in this case because there was nostate action resulting in dissimilar treatment.

III. CONCLUSION

For the foregoing reasons, we reverse the dismissal ofdefendant's postconviction petition. This matter is remanded to thecircuit court to allow defendant an opportunity to amend hispostconviction petition with the benefit of reasonable assistance ofcounsel. The State will then have an opportunity to reviewdefendant's constitutional claims and determine whether to waive orassert the affirmative defense of untimeliness.

Judgments reversed;
cause remanded with directions.

JUSTICE FREEMAN, concurring in part and dissenting in part:

I agree with the majority that, despite the untimely filing ofdefendant's postconviction petition, the consultation requirement ofSupreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) was not met in thiscase and, therefore, that the cause must be remanded to the circuitcourt. However, I do not agree with the majority's decision to addressthe issue of whether defendant's delay in filing his postconvictionpetition was due to his culpable negligence.

As the majority explains, the reason why counsel must fulfill theconsultation requirement of Rule 651(c) in this case, and the reasonthis cause must be remanded to the circuit court, is because achallenge to the timeliness of a postconviction petition is anaffirmative defense that may be waived by the State. See slip op. at 5("postconviction counsel must comply with Rule 651(c) and submitdefendant's substantive claims to the State to give the prosecutor anopportunity to determine whether they are sufficient to merit theState's waiver of the affirmative defense of untimeliness"). However,since the State may elect upon remand to waive the untimeliness ofdefendant's petition in this case (see People v. Boclair, 202 Ill. 2d 89,101-02 (2002), it is clearly premature for this court to be addressingthe issue of whether defendant was culpably negligent in filing hispetition. The remand proceedings have not yet occurred, defensecounsel has not yet consulted with defendant or made furtheramendments to the postconviction petition, and the State has not yetchosen to invoke the affirmative defense of untimeliness. That beingthe case, that portion of the majority's opinion which addresses thetimeliness of defendant's petition and whether defendant was culpablynegligent is advisory. Advisory opinions are to be avoided. Oliveirav. Amoco Oil Co., 201 Ill. 2d 134, 157 (2002). Unlike the majority, Iwould not address the question of whether defendant was culpablynegligent and I express no opinion on that issue.

CHIEF JUSTICE McMORROW joins in this partial concurrenceand partial dissent.