People v. Robinson , 2015 IL App (4th) 130815 ( 2015 )

2015 IL App (4th) 130815
FILED
October 2, 2015
Carla Bender
NO. 4-13-0815 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Douglas County
REGINALD J. ROBINSON, ) No. 07CF64
Defendant-Appellant. )
) Honorable
) Michael G. Carroll,
) Judge Presiding.
JUSTICE APPLETON delivered the judgment of the court, with opinion.
Justices Knecht and Holder White concurred in the judgment and opinion.
OPINION
¶1 Defendant, Reginald J. Robinson, through his appointed counsel, filed an
amended petition for postconviction relief. The State moved to dismiss the amended petition on
the ground of untimeliness (see 725 ILCS 5/122-1(c) (West 2008)) and the trial court granted the
motion. Defendant appeals. In his view, the court should have excused the lateness of his
petition because he "allege[d] facts showing that the delay was not due to his *** culpable
negligence." Id.
¶2 Specifically, the fact defendant alleged was that his counsel on direct appeal had
failed to notify him of the issuance of our decision on direct appeal. In our de novo review (see
People v. Coleman, 183 Ill. 2d 366, 378 (1998)), we are unconvinced that this fact shows a lack
of culpable negligence on defendant's part. We are unconvinced because defendant provides us
no analysis of the statute of limitation, section 122-1(c) of the Post-Conviction Hearing Act (725
ILCS 5/122-1(c) (West 2008)), and unless we know, from such an analysis, what triggered the
running of the period of limitation (whatever that period was), we are in no position to decide
whether defendant's unawareness of our decision on direct appeal serves as a valid excuse for the
admitted lateness of his postconviction petition. Therefore, we affirm the trial court's judgment.
¶3 I. BACKGROUND
¶4 On December 11, 2007, on the basis of stipulated evidence in a bench trial, the
trial court found defendant guilty of unlawful trafficking in cannabis (720 ILCS 550/5.1 (West
2006)).
¶5 On February 14, 2008, the trial court sentenced defendant to 20 years'
imprisonment and fines totaling $28,000.
¶6 On February 11, 2009, on direct appeal, we affirmed the trial court's judgment.
People v. Robinson, No. 4-08-0353, slip order at 2 (Feb. 11, 2009) (unpublished order under
Supreme Court Rule 23).
¶7 Defendant did not petition the Supreme Court of Illinois for leave to appeal.
¶8 On July 26, 2010, defendant filed a pro se petition for postconviction relief. The
trial court appointed counsel, who filed an amended petition. According to the amended petition,
the "delay" in the filing of the petition was due to appellate counsel's failure to notify defendant
of the issuance of our decision on direct appeal.
¶9 On January 17, 2012, the trial court granted the State's motion to dismiss the
amended postconviction petition on the ground of untimeliness. See 725 ILCS 5/122-1(c) (West
2008).
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¶ 10 Defendant appealed, and on June 19, 2013, we remanded the case for the limited
purpose of demonstrating compliance with Illinois Supreme Court Rule 651(c) (eff. Dec. 1,
1984). People v. Robinson, 2013 IL App (4th) 120254-U, ¶ 34.
¶ 11 On remand, postconviction counsel filed an amended certificate demonstrating
compliance with Rule 651(c). The dismissal on the ground of untimeliness stood.
¶ 12 This appeal followed.
¶ 13 II. ANALYSIS
¶ 14 The parties agree that defendant was late in filing his petition for postconviction
relief, but they disagree whether the lateness was due to "culpable negligence" on his part. 725
ILCS 5/122-1(c) (West 2008). Section 122-1(c) excuses the lateness of a postconviction petition
if "the petitioner alleges facts showing that the delay was not due to his or her culpable
negligence." Id.
¶ 15 Because the degree of lateness (how late the petition was) is relevant to the
question of "culpable negligence" (see People v. Hampton, 349 Ill. App. 3d 824, 828 (2004)), we
need to know the deadline for filing the postconviction petition.
¶ 16 The State tells us the deadline was September 18, 2009, but the State does not
explain how it determined that deadline. The parties agree the relevant sentence in section 122-
1(c) is as follows: "If a petition for certiorari is not filed, no proceedings under this Article shall
be commenced more than 6 months from the date for filing a certiorari petition, unless the
petitioner alleges facts showing that the delay was not due to his or her culpable negligence."
725 ILCS 5/122-1(c) (West 2008). But the parties treat this sentence from section 122-1(c) as if
its application and effect were self-explanatory. They provide no explication of section 122-1(c).
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¶ 17 The current version of section 122-1(c) is rather new, and we have found only one
published decision, People v. Wallace, 406 Ill. App. 3d 172 (2010), that interprets the sentence in
question: "If a petition for certiorari is not filed, no proceedings under this Article shall be
commenced more than 6 months from the date for filing a certiorari petition ***." 725 ILCS
5/122-1(c) (West 2008). Wallace interprets this sentence as having the same meaning as the pre-
amended statute, despite the presumption that a material amendment of an unambiguous statute
changes the law (see People v. Woodard, 175 Ill. 2d 435, 449 (1997)). Specifically, Wallace
interprets the terms "certiorari petition" and "petition for certiorari" in the current version of the
statute (725 ILCS 5/122-1(c) (West 2008)) as being synonymous with the term "Petition for
Leave to Appeal to the Illinois Supreme Court" in the previous version of the statute (725 ILCS
5/122-1(c) (West Supp. 2003)). Wallace, 406 Ill. App. 3d at 176.
¶ 18 Before section 122-1(c) was amended by Public Act 93-972, § 10 (eff. Aug. 20,
2004), it provided as follows:
"(c) Except as otherwise provided in subsection (a-5) [(725
ILCS 5/122-1(a-5) (West Supp. 2003))], if the petitioner is under
sentence of death, no proceedings under this Article shall be
commenced more than 6 months after the denial of a petition for
certiorari to the United States Supreme Court on direct appeal, or
more than 6 months from the date for filing such a petition if none
is filed, unless the petitioner alleges facts showing that the delay
was not due to his or her culpable negligence.
When a defendant has a sentence other than death, no
proceedings under this Article shall be commenced more than 6
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months after the denial of the Petition for Leave to Appeal to the
Illinois Supreme Court, or more than 6 months from the date for
filing such a petition if none is filed, unless the petitioner alleges
facts showing that the delay was not due to his or her culpable
negligence.
This limitation does not apply to a petition advancing a
claim of actual innocence." (Emphasis added.) 725 ILCS 5/122-
1(c) (West Supp. 2003) (as amended by Pub. Act 93-605, § 15 (eff.
Nov. 19, 2003)).
¶ 19 As amended by Public Act 93-972, section 122-1(c) now provides:
"(c) Except as otherwise provided in subsection (a-5) [(725
ILCS 5/122-1(a-5) (West 2008))], if the petitioner is under
sentence of death and a petition for writ of certiorari is filed, no
proceedings under this Article shall be commenced more than 6
months after the conclusion of proceedings in the United States
Supreme Court, unless the petitioner alleges facts showing that the
delay was not due to his or her culpable negligence. If a petition
for certiorari is not filed, no proceedings under this Article shall be
commenced more than 6 months from the date for filing a
certiorari petition, unless the petitioner alleges facts showing that
the delay was not due to his or her culpable negligence.
When a defendant has a sentence other than death, no
proceedings under this Article shall be commenced more than 6
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months after the conclusion of proceedings in the United States
Supreme Court, unless the petitioner alleges facts showing that the
delay was not due to his or her culpable negligence. If a petition
for certiorari is not filed, no proceedings under this Article shall
be commenced more than 6 months from the date for filing a
certiorari petition, unless the petitioner alleges facts showing that
the delay was not due to his or her culpable negligence. If a
defendant does not file a direct appeal, the post-conviction petition
shall be filed no later than 3 years from the date of conviction,
unless the petitioner alleges facts showing that the delay was not
due to his or her culpable negligence.
This limitation does not apply to a petition advancing a
claim of actual innocence." (Emphasis added.) 725 ILCS 5/122-
1(c) (West 2008) (as amended by Pub. Act 93-972, § 10 (eff. Aug.
20, 2004)).
¶ 20 "The applicable statute of limitations for a postconviction petition is the one in
effect at the time the petition is filed." People v. Harris, 224 Ill. 2d 115, 125 n.1 (2007).
Defendant filed his petition in July 2010. Therefore, section 122-1(c) as amended by Public Act
93-972 applies to him. See id.
¶ 21 Because defendant "has a sentence other than death," we should look in the
second paragraph of section 122-1(c) for the applicable period of limitation. 725 ILCS 5/122-
1(c) (West 2008). There were no "proceedings in the United States Supreme Court," and
therefore the first sentence of that paragraph is inapplicable. Id. Defendant "file[d] a direct
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appeal," and therefore the third sentence is inapplicable. Id. That leaves the second sentence,
the sentence both parties consider to be applicable to this case: "If a petition for certiorari is not
filed, no proceedings under this Article shall be commenced more than 6 months from the date
for filing a certiorari petition, unless the petitioner alleges facts showing that the delay was not
due to his or her culpable negligence." Id.
¶ 22 In Wallace, the Second District said that "the 'date for filing a certiorari petition'
could arguably be interpreted as the date for filing a petition for leave to appeal to the Illinois
Supreme Court." Wallace, 406 Ill. App. 3d at 176 (quoting 725 ILCS 5/122-1(c) (West 2006)).
That interpretation strikes us as untenable for five reasons.
¶ 23 First, in both the first and second paragraphs of section 122-1(c), the terms
"petition for certiorari" and "certiorari petition" occur in the immediate context of "proceedings
in the United States Supreme Court." 725 ILCS 5/122-1(c) (West 2008). "[A] word is known by
the company it keeps." Environmental Protection Agency v. Pollution Control Board, 186 Ill.
App. 3d 995, 999 (1989). Regarding the "certiorari petition" as directed to an unmentioned,
different court would seem an unnatural reading, lacking any basis in the text of section 122-
1(c).
¶ 24 Second, in standard usage, a petition for leave to appeal is filed with the Supreme
Court of Illinois, whereas a petition for a writ of certiorari is filed with the Supreme Court of the
United States. Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010); Sup. Ct. R. 14; Champaign National
Bank v. Landers Seed Co., 194 Ill. App. 3d 1019, 1022 (1990); In re D.W.S., 99 Ill. App. 3d
1035, 1041 (1981) (Stouder, J., dissenting).
¶ 25 Third, when the legislature means a petition for leave to appeal to our supreme
court, the legislature says a "Petition for Leave to Appeal to the Illinois Supreme Court," as the
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legislature said in section 122-1(c) before amending it by Public Act 93-972. In the preamended
version of section 122-1(c), the legislature used the terms "petition for certiorari" and "Petition
for Leave to Appeal" to mean two different things. It seems unlikely that, in the amended
version of section 122-1(c), the legislature would begin using "certiorari petition" to mean,
interchangeably, a petition to the Supreme Court of the United States for a writ of certiorari as
well as a petition to the Supreme Court of Illinois for leave to appeal.
¶ 26 Fourth, Illinois law is different from federal law in that, under federal law, a
"petition for a writ of certiorari" is merely another name for a petition for permission to appeal
(28 U.S.C. § 1257(a) (1988)), whereas, under Illinois law, certiorari is an extraordinary form of
relief, like mandamus (705 ILCS 5/8 (West 2008)); Bowman v. Illinois Central R.R. Co., 11 Ill.
2d 186, 198-99 (1957); Hartley v. Will County Board of Review, 106 Ill. App. 3d 950, 954-55
(1982). By granting a petition for leave to appeal, pursuant to Rule 315(a), the Supreme Court of
Illinois does not issue a writ of certiorari, which is " '[a]n extraordinary writ.' " Wallace, 406 Ill.
App. 3d at 176 (quoting Black's Law Dictionary 220 (7th ed. 1999) (definition of certiorari)).
Admittedly, the Supreme Court of Illinois, out of necessity, denies more petitions for leave to
appeal than it grants, but the court probably does not think of itself as issuing an "extraordinary
writ" whenever it grants a petition for leave to appeal. In fact, under Illinois law, an appeal and a
writ of certiorari are antithetical concepts: the availability of certiorari depends on there being
no "avenue of appeal or direct review." Stratton v. Wenona Community Unit District No. 1, 133
Ill. 2d 413, 427 (1990).
¶ 27 Fifth, if "certiorari petition" could mean either a petition to the Supreme Court of
the United States for a writ of certiorari or a petition to the Supreme Court of Illinois for leave to
appeal, section 122-1(c) would be ambiguous and unworkable if a defendant filed a petition with
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the Supreme Court of Illinois but not with the Supreme Court of the United States. The
defendant would have both filed a "certiorari petition" and not filed one.
¶ 28 For those five reasons, we conclude, de novo, that the terms "petition for
certiorari" and "certiorari petition" in section 122-1(c) mean only a petition to the Supreme Court
of the United States for a writ of certiorari, not a petition to the Supreme Court of Illinois for
leave to appeal. See Christmas v. Dr. Donald W. Hugar, Ltd., 409 Ill. App. 3d 91, 95 (2011).
¶ 29 Again, section 122-1(c) provides in part: "If a petition for certiorari is not filed,
no proceedings under this Article shall be commenced more than 6 months from the date for
filing a certiorari petition ***." 725 ILCS 5/122-1(c) (West 2008). Defendant filed no
"certiorari petition" with the Supreme Court of the United States. Id. Nor did he file a petition
for leave to appeal with the Supreme Court of Illinois. See Ill. S. Ct. R. 315(a) (eff. Feb. 26,
2010). Because the Supreme Court of the United States would have had subject-matter
jurisdiction to review our decision on direct appeal only if defendant had filed an unsuccessful
petition for leave to appeal with the Supreme Court of Illinois (see Gonzalez v. Thaler, 565 U.S.
_____, _____, 132 S. Ct. 641, 656 (2012)), we do not see how it is possible to determine "the
date," that is, the deadline, "for filing a certiorari petition" (725 ILCS 5/122-1(c) (West 2008)).
A "date for filing a certiorari petition" presupposes that the Supreme Court of the United States
has subject-matter jurisdiction, and the Supreme Court of the United States has subject-matter
jurisdiction to review a judgment by an intermediate state appellate court only if the highest
court of the state declined to review the judgment (Gonzalez, 565 U.S. at _____, 132 S. Ct. at
656). See also Rose v. Lundy, 455 U.S. 509, 518 (1982) ("Under our federal system, the federal
and state courts [are] equally bound to guard and protect rights secured by the Constitution.
[Citation.] *** [F]ederal courts apply the doctrine of comity, which teaches that one court
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should defer action on causes properly within its jurisdiction until the courts of another
sovereignty with concurrent powers, and already cognizant of the litigation, have had an
opportunity to pass upon the matter." (Internal quotation marks omitted.)).
¶ 30 For that reason, United States Supreme Court Rule 13(1) contemplates review of
the judgment of a "lower state court" only if the "state court of last resort" "den[ies] discretionary
review." Id. The rule provides:
"1. Unless otherwise provided by law, a petition for a writ
of certiorari to review a judgment in any case, civil or criminal,
entered by a state court of last resort or a United States court of
appeals (including the United States Court of Appeals for the
Armed Forces) is timely when it is filed with the Clerk of this
Court within 90 days after entry of the judgment. A petition for a
writ of certiorari seeking review of a judgment of a lower state
court that is subject to discretionary review by the state court of
last resort is timely when it is filed with the Clerk within 90 days
after entry of the order denying discretionary review." Id.
¶ 31 We are not "a state court of last resort." Id. Rather, we are "a lower state court
that is subject to discretionary review by the state court of last resort," i.e., the Supreme Court of
Illinois. Id. It follows that the second sentence of Rule 13(1) is applicable: "A petition for a
writ of certiorari seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed with the Clerk
within 90 days after entry of the order denying discretionary review." Id. Our decision in
defendant's direct appeal would have been subject to "discretionary review" by the Supreme
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Court of Illinois if defendant had filed a petition for leave to appeal (see Ill. S. Ct. R. 315(a) (eff.
Feb. 26, 2010)). Sup. Ct. R. 13(1). As defendant informs us, however, he never filed a petition
for leave to appeal. As a result, a dilemma arises. Under Rule 13(1), the 90-day period for filing
a certiorari petition does not begin running until the "entry of the order denying discretionary
review." Id. If, as in the present case, the defendant filed no petition for leave to appeal and
consequently obtained no order denying discretionary review, section 122-1(c) of the Post-
Conviction Hearing Act (725 ILCS 5/122-1(c) (West 2008)) and, in turn, Rule 13(1) (Sup. Ct. R.
13(1)) lead, apparently, to a cul-de-sac. The deadline for filing a petition for a writ of certiorari
does not even start running: there is no occasion for it to start running, because in the absence of
an order by the state's highest court denying discretionary review, the Supreme Court of the
United States lacks subject-matter jurisdiction to review the decision of a lower state court
(Gonzalez, 565 U.S. at _____, 132 S. Ct. at 656).
¶ 32 Like the defendant in this case, the defendant in Wallace had filed a direct appeal
but no petition for leave to appeal. Wallace, 406 Ill. App. 3d at 177. After interpreting
"certiorari petition" to mean a petition for leave to appeal to the Supreme Court of Illinois, the
Second District assumed, for the sake of argument, that "certiorari petition" meant a petition to
the Supreme Court of the United States, as the defendant in Wallace argued. Id. In the absence
of an order by the Supreme Court of Illinois denying discretionary review, the Second District
adopted, as a period of limitation, the 21-day period for filing a petition for leave to appeal with
the Supreme Court of Illinois (see Ill. S. Ct. R. 315(b) (eff. Feb. 26, 2010)). Wallace, 406 Ill.
App. 3d at 175. (We note that, in Wallace, the Second District never firmly decided that
"certiorari petition" meant either a petition to the Supreme Court of Illinois or a petition to the
Supreme Court of the United States; the Second District merely decided that, under either
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interpretation, the defendant's postconviction petition was untimely. Id. at 178.) Because the
defendant in Wallace had filed no petition for leave to appeal with the Supreme Court of Illinois,
the Second District held he had 21 days after the judgment on direct appeal to file his
postconviction petition, since, under Rule 315(b), a petition for leave to appeal had to be filed
within 21 days after the judgment on direct appeal. Id. at 177. The Second District reasoned:
"Defendant takes the position that the phrase 'certiorari
petition' refers to a petition seeking review from the United States
Supreme Court. However, defendant's postconviction petition
would still be untimely under this interpretation. Under United
States Supreme Court Rule 13, a 'petition for a writ of certiorari
seeking review of a judgment of a lower state court that is subject
to discretionary review by the state court of last resort is timely
when it is filed with the Clerk within 90 days after entry of the
order denying discretionary review.' (Emphasis added.) Sup. Ct.
R. 13. Here, defendant never sought discretionary review by the
Illinois Supreme Court, so he did not have an additional 90 days in
which to decide whether to appeal to the United States Supreme
Court. In other words, given the fact that defendant did not file a
petition for leave to appeal, the appellate court judgment became
final after 21 days, and a petition for certiorari was not and could
not have been filed with the United States Supreme Court, thus
triggering the six-month clock under section 122-1(c). A contrary
interpretation would not make sense, as it would give defendant an
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additional 90 days in which to file a postconviction petition when
he did not even have the option of using that time to decide
whether to file a petition for certiorari." Id.
We do not understand what basis this conclusion has in the text of section 122-1(c). We do not
find, in section 122-1(c), any reference to the 21-day period in Rule 315(b).
¶ 33 As Wallace observed, "section 122-1(c) provides three possible methods for
calculating the deadline for filing a postconviction petition." Id. at 175. The first method is
applicable if there were proceedings in the Supreme Court of the United States: the
postconviction petition must be filed within six months after the proceedings ended. Id. The
second method is applicable if the defendant filed no " 'certiorari petition' ": the postconviction
petition must be filed within six months after the deadline for filing the " 'certiorari petition' " (id.
(quoting 725 ILCS 5/122-1(c) (West 2006)))—and as we have discussed, this deadline exists
only if "the state court of last resort" "ent[ered]" an "order denying discretionary review" (Sup.
Ct. R. 13(1)). Without the entry of such an order, there would be no date from which to count
the 90 days in United States Supreme Court Rule 13(1) and, consequently, no date from which to
count the 6 months in section 122-1(c), under the second method (725 ILCS 5/122-1(c) (West
2008)). The third method is applicable if the defendant filed no direct appeal: the
postconviction petition must be filed no later than three years after conviction. Wallace, 406 Ill.
App. 3d at 175.
¶ 34 Section 122-1(c) contains no fourth method, a method that would be applicable if
the defendant filed a direct appeal but no petition for leave to appeal. Instead, it appears that
Wallace created a fourth method by judicial amendment. We cannot go along with this. "Where
a statute is clear and unambiguous, we cannot restrict or enlarge its meaning. Rather, we must
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interpret and apply it in the manner in which it was written. We cannot rewrite a statute to make
it consistent with the court's idea of orderliness and public policy." (Emphasis added.) In re
Estate of Schlenker, 209 Ill. 2d 456, 466 (2004). "It is a well established doctrine in construing
statutes of limitations that cases within the reason but not within the words of a statute are not
barred." Helbig v. Citizens' Insurance Co., 234 Ill. 251, 254 (1908); see also Hamil v. Vidal, 140
Ill. App. 3d 201, 204 (1985) ("[A] statute of limitations is, by its very nature, an arbitrary
provision which often issues diverse and seemingly capricious results. Nevertheless, it must not
be enlarged by judicial action beyond its legislatively intended scope ***."); Fess v. Parke,
Davis & Co., 113 Ill. App. 3d 133, 135 (1983) ("[T]he court may construe only the clear words
of the statute, and if its scope is to be enlarged, the remedy should be legislative rather than
judicial." (Internal quotation marks omitted.)); Fisher v. Rhodes, 22 Ill. App. 3d 978, 982 (1974)
("It is not for judicial tribunals to extend the [statute of limitations] to all cases coming within the
reason of it, so long as they are not within the letter."); 25 Ill. L. and Prac. Limitations of Actions
§ 6 (2001) ("The operation of statutes of limitations will *** not be extended to cases not
expressly provided for by the statutes."); 54 C.J.S. Limitations of Actions § 11 (2010) ("A statute
of limitations should not be applied to cases not clearly within its provisions, and it should not be
extended by construction.").
¶ 35 In sum, then, we are left only with the parties' shared position that the
postconviction petition was filed late. We do not understand how that position squares with
section 122-1(c). Nevertheless, because a position to the contrary would be forfeited, we are
obliged to regard the postconviction petition as late. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,
2013) ("Points not argued are [forfeited] ***.").
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¶ 36 Defendant maintains that because his appellate counsel failed to notify him of our
decision on direct appeal, the lateness of the postconviction petition was not the result of
culpable negligence on defendant's part. We do not understand, though, exactly how defendant's
unawareness of the issuance of our decision on direct appeal caused the postconviction petition
to be late. It would seem that without an awareness of our decision on direct appeal, there would
be no petition for leave to appeal, and without a petition for leave to appeal, there would be no
denial of a petition for leave to appeal, and without a denial of a petition for leave to appeal,
there would be no deadline for filing a certiorari petition, and without a deadline for filing a
certiorari petition, there would be no deadline for filing a postconviction petition.
¶ 37 In short, defendant's excuse for the lateness, i.e., his unawareness of our decision
on direct appeal, makes no sense without an explication of section 122-1(c). Under section 122-
1(c), what triggers the running of the period of limitation? What is the period of limitation?
How does the issuance of our decision on direct appeal relate to that trigger? Those questions
are unanswered in this appeal, and without answers to those questions, we lack the means to
address the issue of culpable negligence. See 725 ILCS 5/122-1(c) (West 2008). The excuse for
the lateness lacks a legal context, namely, an analysis of section 122-1(c). In the end, we are left
with only an admission of lateness, without a coherent explanation of why the lateness was not
due to culpable negligence on defendant's part.
¶ 38 Defendant argues, though, in his petition for rehearing (which we granted), that
Wallace gave him no choice but to make this admission of lateness, for, under Wallace, his
petition for postconviction relief was indisputably late. He objects it would be unreasonable to
expect him to have forecasted our disagreement with Wallace.
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¶ 39 Fair enough, but in his brief, defendant did not even cite Wallace or provide any
analysis of section 122-1(c). That is our point. His argument was materially incomplete.
Without a fully reasoned argument, he failed to establish that the lateness of his postconviction
petition was not due to his own culpable negligence. Therefore, in response to defendant's
petition for rehearing, we adhere to our decision affirming the trial court's judgment.
¶ 40 III. CONCLUSION
¶ 41 For the foregoing reasons, we affirm the trial court's judgment. We award the
State $50 in costs against defendant.
¶ 42 Affirmed.
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