People v. Carson , 2024 IL App (1st) 221644 ( 2024 )

2024 IL App (1st) 221644No. 1-22-1644
Opinion filed May 3, 2023
Sixth Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County, Illinois.
Plaintiff-Appellee, )
)
v. ) No. 04 CR 06367
)
JEROME CARSON, ) The Honorable
) Joseph M. Claps,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE C.A. WALKER delivered the judgment of the court with opinion.
Presiding Justice Oden Johnson and Justice Hyman concurred in the judgment and
opinion.
OPINION
¶1 This appeal derives from the circuit court’s dismissal of a second stage postconviction
petition brought pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2022)). Petitioner Jerome Carson argues: (1) postconviction counsel’s Rule 651(c) (Ill. S.
Ct. R. 651(c) (eff. July 1, 2017)) certificate failed to raise a rebuttable presumption of compliance
because it is unclear whether counsel reviewed portions of the record necessary to adequately
present Carson’s claim that he lacked culpable negligence in filing an untimely petition and
No. 1-22-1644
(2) even if the presumption of compliance was established, such compliance is rebutted by the
record that demonstrated postconviction counsel’s unreasonable assistance. For the following
reasons, we reverse the circuit court’s dismissal of petitioner’s postconviction petition and remand
to the circuit court for a new second stage proceeding.
¶2 I. BACKGROUND
¶3 Because the facts underlying this case are set forth in People v. Carson, 2021 IL App (1st)
1190810-U, we will only detail those pertinent to this appeal. Carson was charged with the offenses
of attempted murder and aggravated arson after causing a house fire that resulted in injuries to one
of the victims. Pursuant to a fully negotiated plea agreement, Carson pled guilty to the charges and
was sentenced to an aggregate term of 32 years’ imprisonment in February 2006. On January 30,
2013, 1 Carson filed a petition for relief from judgment, pursuant to section 2-1401(f) of the Code
of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). In October 2013, the court and the parties
addressed whether the petition for relief from judgment should be reclassified as a postconviction
petition, and the case was continued for postplea counsel to have further discussions with Carson.
In April 2014, postplea counsel informed the court that Carson was withdrawing the petition,
stating:
“I have gone through this petition that he filed with—I went to State[s]ville on Monday.
We went through. We discussed some case law with regard to it. At this point, he is going
to withdraw this petition, Judge. If, in the future, he feels that there is something relevant
In his brief, Carson claims the petition for relief from judgment was filed in December 2012. The
1
record shows that the petition is dated December 5, 2012, but the only visible court stamp depicts the file
date as January 30, 2013. We stated in Carson that the file date was January 30, 2013. See Carson, 2021
IL App (1st) 190810-U, ¶ 10.
-2-
No. 1-22-1644
that he needs to file, he can go ahead and re-file it, Your Honor can appoint us if you think
it’s pertinent. But at this point, with what he has filed, we’re withdrawing it.”
¶4 On March 9, 2015, Carson filed a pro se postconviction petition, arguing (1) his absence
from a conference pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012) held prior to the
guilty plea hearing deprived him of due process, (2) his conviction for aggravated arson violated
the one-act, one-crime rule, and (3) he was denied effective assistance of counsel because a plea
agreement was reached during a Rule 402 conference without his presence and consent and his
guilty plea was not knowing and intelligent. The petition advanced to the second stage of
postconviction proceedings, and the State filed a motion to dismiss. In the motion, the State argued
that the petition was untimely and Carson failed to make a substantial showing of a constitutional
violation. The court granted the motion to dismiss. Carson appealed, asserting postconviction
counsel rendered unreasonable assistance when he failed to amend the petition to present factual
allegations of Carson’s lack of culpable negligence in filing the untimely petition. Finding counsel
was unreasonable, this court reversed the circuit court’s decision and remanded for a new second
stage proceeding. Carson, 2021 IL App (1st) 190810-U.
¶5 On remand, newly appointed postconviction counsel filed a supplemental petition for
postconviction relief on the alleged violation of the one-act, one-crime rule and a response to the
State’s motion to dismiss accompanied by Carson’s affidavit. In the affidavit, Carson averred:
“6. The untimeliness of my postconviction petition was due to the fact that I am not
a lawyer and have not been educated in the complexities of the law.
7. I assumed that it was my attorney’s duty to correct any mistake regarding my
plea.
-3-
No. 1-22-1644
8. I believe that my petition is not untimely because my sentence is void under the
one act one crime rule and challenges to void judgments can be raised at any time.”
¶6 Postconviction counsel also filed a Rule 651(c) certificate stating he (1) “consulted with
the petitioner, Jerome Carson, by phone, mail, electronic means or in person to ascertain his
contentions of deprivation of constitutional rights,” (2) “examined the record of proceedings at the
guilty plea, including the common law record, report of proceedings, and any exhibits in
possession of the Clerk of the Circuit Court,” and (3) “made amendments to the petition filed
pro se, they are necessary for an adequate presentation of petitioner’s contentions.”
¶7 The court held a hearing on the motion to dismiss. The State argued that the reasons for the
untimely filing on the petition stated in Carson’s affidavit were not “valid excuse[s]” to overcome
the timeliness provision of the Act. The State further argued that Carson’s claims of a due process
violation and an involuntary guilty plea were contradicted by the record and his sentence did not
violate the one-act, one-crime rule.
¶8 As to the petition’s timeliness, postconviction counsel argued:
“Mr. Carson’s filing is not considered untimely if he can show the delay was not
due to his culpable negligence.
On March 15th, 2022, the petitioner filed an affidavit which outlines the reasons
behind the delay. Therein being that petitioner is not a lawyer and was not educated in the
complexities of the law. And like in most areas of the law, Mr. Carson assumed that his
attorney had the duty to correct the constitutional violation outlined in Mr. Carson’s
petition. Upon learning otherwise, Mr. Carson filed his pro se petition immediately.
-4-
No. 1-22-1644
Through Mr. Carson’s research, he believed that his sentence was void under the
one-act, one crime rule, and he believes that challenges to a void judgment can be raised at
any time.
As the Illinois Supreme Court found in People v. Boclair, the standard of culpable
negligence allows the court to determine the timeliness of the petition on an individual
basis. The Court found that the culpably negligent standard contemplates something greater
than ordinary negligence and is akin to recklessness.
In this case, Mr. Carson wasn’t being reckless, he merely was ignorant of the
process and this caused a delay in filing.”
¶9 As to the petition’s substantive claims, postconviction counsel acknowledged that the plea
offer did not derive from a Rule 402 conference, and therefore, Carson did not suffer a due process
violation from his absence. Postconviction counsel then argued that Carson made a substantial
showing of constitutional violations on the remaining two claims. Specifically, postconviction
counsel claimed Carson’s convictions violated the one-act, one-crime rule because they were based
on igniting a fire on the same victim. Counsel further contended that Carson’s guilty plea was not
knowing and intelligent because he was not informed of the State’s plea offer until the morning of
the hearing and was not given time to consider the offer.
¶ 10 At one point, the court inquired about Carson’s culpable negligence argument:
“THE COURT: And I don’t understand your argument of the fact that he’s not
educated on the complexities of the law.
So is it your position that anybody that’s—oh, I’m sorry, and that he expected his
lawyer to raise constitutional issues.
-5-
No. 1-22-1644
Did he speak to his lawyer about issues he had after the plea?
[POSTCONVICTION COUNSEL]: After the plea, your Honor?
THE COURT: Well, yeah, that’s when he says he realized that his constitutional
rights were violated. That’s what you just told me.
[POSTCONVICTION COUNSEL]: Yes, when he realized that, that’s when he
filed his postconviction petition.
THE COURT: So, what, in 2015, it came to him?
[POSTCONVICTION COUNSEL]: Yes, your Honor.” 2
¶ 11 The circuit court granted the motion to dismiss and denied the postconviction petition on
October 24, 2022. In its written order, the court made no reference to the petition’s timeliness.
Instead, the court determined the petition failed to make a substantial showing of a constitutional
violation. The circuit court found that (1) Carson was not denied due process because no Rule 402
conference occurred, and his claim that he was not admonished under Rule 402(c) was contradicted
by the record, (2) it was “clear” from the indictment that the aggravated arson count was a separate
act from the attempted murder count, and (3) Carson’s ineffective assistance of counsel and
involuntary guilty plea claims failed where the underlying allegations lacked merit. This appeal
followed.
¶ 12 II. JURISDICTION
¶ 13 On October 24, 2022, the circuit court summarily dismissed Carson’s petition at the second
stage of postconviction proceedings. Carson filed a notice of appeal on the same day. Hence, we
2
This court relied on counsel’s misstatement when referencing the time period between the filing of petition
for relief from judgment and the postconviction petition in its prior Order.
-6-
No. 1-22-1644
have jurisdiction over this appeal pursuant to article VI, section 6 of the Illinois Constitution (Ill.
Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 651(a) (eff. July 1, 2017), which governs
appeals in postconviction proceedings.
¶ 14 III. ANALYSIS
¶ 15 On appeal, Carson argues that the circuit court erred in denying the postconviction petition
at the second stage proceeding for two reasons. First, postconviction counsel’s Rule 651(c)
certificate failed to raise a rebuttable presumption that counsel reviewed portions of the record
necessary to adequately present and support Carson’s argument for lack of culpable negligence in
filing an untimely petition. Second, the record rebuts a presumption of compliance where counsel
(1) raised a noncognizable argument to demonstrate lack of culpable negligence in Carson’s
affidavit, (2) failed to amend the petition to include the facts from the proceeding on the petition
for relief from judgment to support Carson’s lack of culpable negligence argument, and
(3) misstated when Carson discovered the one-act, one-crime issue during the hearing on the
State’s motion to dismiss. Alternatively, Carson argues that we should remand this case for further
proceedings pursuant to People v. Jackson, 2021 IL App (1st) 190263, given the insufficient record
showing postconviction counsel’s actions in obtaining any facts to support Carson’s lack of
culpable negligence claim.
¶ 16 The Act (725 ILCS 5/122-1 et seq. (West 2022)) provides a mechanism by which a
criminal defendant can assert that his conviction and sentence were the result of a substantial denial
of his rights under the United States Constitution, the Illinois Constitution, or both. People v.
English, 2013 IL 112890, ¶ 21. The Act provides a three-stage process for adjudicating
postconviction petitions. Id. ¶ 23. At the second stage, the State is allowed to file either a motion
-7-
No. 1-22-1644
to dismiss or an answer to the petition, and the court determines whether the petitioner has made
a substantial showing of a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 381 (1998).
If a postconviction petition is not filed within the limitations period, the Act requires the petitioner
to allege facts showing the delay was not due to his or her culpable negligence. 725 ILCS 5/122-
1(c) (West 2022). If the petitioner fails to allege lack of culpable negligence, the court must dismiss
the petition as untimely upon the State’s motion to dismiss. People v. Perkins, 229 Ill. 2d 34, 43
(2007) (citing 725 ILCS 5/122-1(c) (West 2006)).
¶ 17 Additionally, counsel may be appointed at the second stage if the petitioner is indigent. 725
ILCS 5/122-4 (West 2022); People v. Pendleton, 223 Ill. 2d 458, 472 (2006). A petitioner has no
constitutional right to effective assistance of counsel in postconviction proceedings. People v.
Greer, 212 Ill. 2d 192, 204 (2004). Rather, a petitioner has a statutory right to reasonable assistance
of counsel. People v. Hardin, 217 Ill. 2d 289, 299 (2005). Statutory reasonable assistance is
something “less than that afforded by the federal or state constitutions.” Pendleton, 223 Ill. 2d at
472.
¶ 18 To ensure that individuals receive reasonable assistance, Rule 651(c) requires that
postconviction counsel (1) consult with petitioner either by mail or in person to ascertain his
contentions of deprivation of constitutional rights, (2) examine the record of proceedings at the
trial, and (3) make any amendments to the petitioner’s petition that are necessary to adequately
present the petitioner’s contentions. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Postconviction counsel
establishes compliance with Rule 651(c) by filing a certificate representing that counsel fulfilled
these requirements. Perkins, 229 Ill. 2d at 50. The certificate creates a rebuttable presumption that
counsel provided the required representation during the second stage proceeding. Id. at 52. The
-8-
No. 1-22-1644
petitioner bears the burden of overcoming this presumption by demonstrating “his attorney’s
failure to substantially comply with the duties mandated by Rule 651(c).” People v. Profit, 2012
IL App (1st) 101307, ¶ 19. We review de novo postconviction counsel’s compliance with Rule
651(c). People v. Jones, 2011 IL App (1st) 092529, ¶ 19.
¶ 19 In Perkins, our supreme court held that Rule 651(c) requires postconviction counsel to
amend an untimely pro se petition to allege any available facts necessary to establish that delay
was not due to the petitioner’s culpable negligence. Perkins, 229 Ill. 2d at 49. The Perkins court
provided directive in fulfilling that duty:
“In discharging this duty, counsel must inquire of the petitioner whether there is any excuse
for the delay in filing. As a practical matter, any potential excuse for the late filing will
often be discovered by speaking with the petitioner. Counsel must also allege any excuse
for the delay in filing apparent from the pleadings and the portions of the record counsel
must review to present petitioner’s claims. See People v. Davis, 156 Ill. 2d 149, 164 (1993)
(under Rule 651(c), counsel is required to review those portions of the record necessary to
present and support the claims by the petitioner in the pro se petition).” Id. at 49-50.
¶ 20 We cannot ascertain whether counsel discharged his duties under Rule 651(c) because the
record is insufficient as to counsel’s actions in obtaining any excuse for the delay in filing the
postconviction petition. Carson argues that postconviction counsel failed to amend the petition to
include facts from the proceedings on the petition for relief from judgment that support his lack of
culpable negligence claim. While postconviction counsel filed a Rule 651(c) certificate of
compliance, averring that he consulted with Carson and subsequently filed an affidavit detailing
excuses for delay, the record does not show whether counsel knew about the petition for relief
-9-
No. 1-22-1644
from judgment and the reasons, if any, counsel may not have included the facts surrounding that
petition as an excuse. The State’s own contention shows the lack of record here. In its brief, the
State claims that “[l]ogic dictates” that “petitioner would have shared with his new counsel
anything which might have supported a lack of culpable negligence argument.” (Emphasis added.)
This assumption does not demonstrate the information counsel obtained in support of Carson’s
lack of culpable negligence claim.
¶ 21 This court remanded a postconviction case for further second stage proceedings due to an
insufficient record in Jackson, 2021 IL App (1st) 190263. In Jackson, the defendant argued his
postconviction counsel rendered unreasonable assistance by failing to include evidentiary support
for his petition. Id. ¶ 44. This court found that it could not determine whether counsel acted
unreasonably because the record was devoid of any information as to what counsel attempted to
obtain or the facts she found. Id. Instead of finding the defendant failed to prove counsel acted
unreasonably due to lack of a sufficient record, this court exercised its authority, pursuant to
Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), to remand the case for further second stage
proceedings so that counsel may amend and support the petition. Jackson, 2021 IL App (1st)
190263, ¶ 46.
¶ 22 The State argues remand is inappropriate because Carson was not prejudiced. Specifically,
the circuit court did not address timeliness and denied the petition based on Carson’s failure to
make a substantial showing of a constitutional violation. We find People v. Addison, 2023 IL
127119, applicable here, even if counsel’s “alleged ‘deficiency’ unquestionably did not factor into
the circuit court’s dismissal,” as the State contends. In Addison, our supreme court held that
prejudice is not required for petitioner to obtain remand for counsel’s noncompliance with Rule
- 10 -
No. 1-22-1644
651(c). Id. ¶ 35. Quoting its prior decision in People v. Suarez, 224 Ill. 2d 37, 51-52 (2007), the
Addison court reiterated:
“ ‘Our Rule 651(c) analysis has been driven, not by whether a particular defendant’s claim
is potentially meritorious, but by the conviction that where postconviction counsel does not
adequately complete the duties mandated by the rule, the limited right to counsel conferred
by the Act cannot be fully realized. [Citations.] We have consistently declined the State’s
invitation to excuse noncompliance with the rule on the basis of harmless error. We refused
to address questions that are properly determined in the first instance by the circuit court.
The State presents no new persuasive arguments that would justify departing from our prior
case law. Accordingly, we decline to hold that noncompliance with Rule 651(c) may be
excused on the basis of harmless error.’ ” (Emphasis in original.) Addison, 2023 IL 127119,
¶ 33 (quoting Suarez, 224 Ill. 2d at 51-52).
Thus, remand is required to ensure petitioners are provided with reasonable assistance of counsel,
as provided by the Act, regardless of whether the defendant’s claims have merit. See Jackson,
2021 IL App (1st) 190263, ¶ 47 (“[r]emand is required whether or not defendant’s underlying
claim has merit” (citing Suarez, 224 Ill. 2d at 47)).
¶ 23 The State contends we should follow our supreme court’s more recent decision in People
v. Cotto, 2016 IL 119006. There, the petitioner filed a postconviction petition that advanced to the
second stage. Id. ¶¶ 9-11. The State filed a motion to dismiss, arguing, inter alia, that the petition
was untimely filed and postconviction counsel filed a response asserting the petitioner’s reason for
the untimeliness. Id. ¶¶ 12-13. The court granted the State’s motion to dismiss without reference
to timeliness. Id. ¶ 14. On appeal, the petitioner argued that postconviction counsel rendered
- 11 -
No. 1-22-1644
unreasonable assistance because he failed to provide an adequate excuse for delay in filing. Id.
¶ 44. The supreme court held the petitioner failed to demonstrate that postconviction counsel
provided unreasonable assistance where the petitioner did not provide any additional information
that counsel should have included on the timeliness issue and state when counsel was retained in
relation to filing the petition. Id. ¶ 50. Our supreme court also noted the circuit court did not dismiss
the petition based on untimeliness. Id.
¶ 24 While the Cotto court mentioned the basis for the dismissal in its determination, its decision
does not suggest a deviation from Suarez and Addison, which held that a defendant need not show
prejudice on the issue of Rule 651(c) compliance. Rather, a careful reading of Cotto reveals the
court’s ultimate holding that the defendant failed to show counsel rendered unreasonable
performance. Here, conversely, we cannot determine whether counsel’s performance was
unreasonable, given the insufficient record. Therefore, we find the appropriate remedy is to remand
this case as in Jackson.
¶ 25 The State further claims the petition for relief from judgment would not change any
determination regarding culpable negligence because the petition was filed three years after the
deadline to file the postconviction petition had expired. Again, Carson need not show prejudice to
warrant remand. We also note that counsel is tasked with amending an untimely postconviction
petition to allege any available facts necessary to establish that delay was not due to the petitioner’s
culpable negligence. See Perkins, 229 Ill. 2d at 49. As Carson states, the petition could have
explained, at minimum, the delay from late 2012 to April 2014. For the foregoing reasons, we
exercise our authority under Rule 615(b) to remand the case for a new second stage proceeding.
On remand, postconviction counsel must consult with Carson and amend the petition to include
- 12 -
No. 1-22-1644
any excuses for the delay in filing. We also direct counsel to state on the record the attempts made
to obtain any excuses supporting Carson’s lack of culpable negligence claim.
¶ 26 IV. CONCLUSION
¶ 27 We reverse the circuit court’s judgment and remand for a new second stage proceeding
with directions.
¶ 28 Reversed and remanded with directions.
- 13 -
No. 1-22-1644
People v. Carson, 2024 IL App (1st) 221644Decision Under Review: Appeal from the Circuit Court of Cook County, No. 04-CR-
06367; the Hon. Joseph M. Claps, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Christofer R. Bendik, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Brian A. Levitsky, and Tasha-Marie Kelly, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
- 14 -