People v. Johnson

NOTICE 2020 IL App (4th) 180620-UThis order was filed under Supreme
FILED
Court Rule 23 and may not be cited NO. 4-18-0620 July 6, 2020
as precedent by any party except in Carla Bender
the limited circumstances allowed IN THE APPELLATE COURT 4th District Appellate
under Rule 23(e)(1). Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Woodford County
JASON C. JOHNSON, ) No. 13CF163
Defendant-Appellant. )
) Honorable
) Charles M. Feeney,
) Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court.
Justices Turner and Holder White concurred in the judgment.
ORDER
¶ 1 Held: The appellate court granted counsel’s motion to withdraw because no meritorious
issues could be raised on appeal.
¶2 This case comes to us on the motion of the Office of the State Appellate Defender
(OSAD) to withdraw as counsel. In August 2017, defendant, Jason C. Johnson, pro se filed a
petition for postconviction relief, alleging several claims of ineffective assistance of counsel. In
August 2018, the trial court granted the State’s motion to dismiss, finding defendant’s petition
was untimely.
¶3 In March 2020, OSAD filed a motion to withdraw. In its brief, OSAD contends
that appeal of this case would be without arguable merit. We agree, grant OSAD’s motion to
withdraw as counsel, and affirm the trial court’s judgment.
¶4 I. BACKGROUND
¶5 A. Procedural History
¶6 In May 2014, a jury convicted defendant of two counts of predatory criminal
sexual assault (720 ILCS 5/11-1.40(a)(1) (West 2012)). The charges stemmed from allegations
made by M.B., a minor under the age of 13, regarding two separate instances of sexual
penetration. In August 2014, the trial court sentenced defendant to two consecutive sentences of
20 years in prison.
¶7 In April 2016, this court affirmed defendant’s conviction and sentence on direct
appeal. People v. Johnson, 2016 IL App (4th) 150004, ¶ 4, 55 N.E.3d 32. Defendant did not file
a petition for leave to appeal to the Illinois Supreme Court or a petition for certiorari to the
United States Supreme Court.
¶8 B. The Postconviction Petition
¶9 In August 2017, defendant filed a petition pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)), alleging several claims of ineffective
assistance of trial counsel. The trial court appointed counsel and advanced the petition to second-
stage proceedings.
¶ 10 In May 2018, defendant, through counsel, filed an amended postconviction
petition raising claims of ineffective assistance of trial and appellate counsel. The amended
petition acknowledged that the pro se petition was not timely filed but maintained that defendant
was not culpably negligent. The amended petition stated as follows:
“Defendant lacks the legal knowledge and ability to prepare the necessary
pleadings and therefore needed the assistance of a jailhouse lawyer.
Unfortunately, Defendant was delayed in his pursuit of said assistance because of
an attack in prison that Defendant suffered and the prison culture that denied him
access to any assistance.”
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¶ 11 Defendant attached affidavits in support of his claim of delay. In his own
affidavit, defendant detailed his efforts to obtain assistance from inmates and law library staff.
Defendant stated that he was represented by private counsel on direct appeal but he ran out of
funds. Defendant explained that he was provided with the form and instructions for how to file a
petition for leave to appeal and, later, a postconviction petition, but due to the nature of his
convictions, he could not find anyone to help him prepare those filings. Defendant also stated
that he had been attacked, had to be moved into protective custody, and only found someone
willing to assist him in July 2017.
¶ 12 Defendant also attached the affidavit of the inmate who finally agreed to assist
him. The inmate generally corroborated the difficulty child sex-offenders have getting assistance
from inmates on legal matters. The inmate also averred that he informed defendant that the time
for filing a petition for leave to appeal and a petition for certiorari had expired and therefore
defendant had three years from the date of his conviction to file a postconviction petition.
¶ 13 In July 2018, the State filed a motion to dismiss, arguing that defendant was
required to file his postconviction petition within six months from the date he could have filed a
petition for leave to appeal (PLA). Defendant’s direct appeal was decided in April 2016, and the
deadline to file a PLA was in May 2016. Defendant did not file his petition until well over a year
later. The State further argued that defendant did not set forth any basis to conclude that (1) his
being attacked prevented him from filing a timely petition or (2) he could not have filed a
petition without assistance. The State also noted that defendant admitted in his affidavit that he
received the proper forms and instructions well before the filing deadlines.
¶ 14 Defendant filed a response to the State’s motion asserting that the affidavits
attached to the amended petition sufficiently demonstrated that the delay in filing was due to
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defendant’s mistreatment and not his culpable negligence. Defendant further noted that he pro se
filed a motion for leave to file a late petition for writ of certiorari with the United States
Supreme Court in April 2018, and because that Court had yet to rule on the motion, his petition
was timely. Defendant attached a copy of that motion, in which he stated that he attempted to file
a PLA in the Illinois Supreme Court in May 2017, but the PLA was returned unfiled with a letter
stating the PLA failed to comply with supreme court rules.
¶ 15 In August 2018, the trial court conducted a hearing on the State’s motion to
dismiss. Following argument, the trial court granted the State’s motion. The court began by
explaining that defendant’s late filing of a PLA and petition for certiorari did not toll the
deadline for filing a postconviction petition. Further, the court found that defendant was culpably
negligent for the late filing because (1) he did not attempt to comply with the deadline on his
own despite being provided with the form and instructions for doing so and (2) case law
established that a defendant is not entitled to rely on advice from “jailhouse lawyers” or inmates.
Accordingly, the court dismissed defendant’s amended petition.
¶ 16 C. OSAD’s Motion To Withdraw
¶ 17 Defendant appealed the trial court’s dismissal, and the trial court appointed
OSAD to represent defendant. In March 2020, OSAD filed a motion to withdraw, asserting that
(1) defendant’s petition was untimely, (2) defendant was culpably negligent, and
(3) postconviction counsel provided reasonable representation as required by Illinois Supreme
Court Rule 651(c) (eff. July 1, 2017). OSAD served a copy of its motion to withdraw on
defendant, and defendant failed to file a response. We agree with OSAD, grant its motion, and
affirm the trial court’s judgment.
¶ 18 II. ANALYSIS
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¶ 19 A. Defendant’s Petition Was Untimely
¶ 20 The Act allows individuals convicted of a criminal offense to challenge the
proceedings in which they were convicted under federal or state constitutions or both. People v.
Cathey, 2012 IL 111746, ¶ 17, 965 N.E.2d 1109. Section 122-1(c) of the Act provides that “[i]f 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 2016). The Illinois Supreme Court has held that, under the Act, if a defendant fails to file a
PLA, the deadline for filing a postconviction petition is 35 days plus 6 months from the date the
appellate court issued its decision. People v. Johnson, 2017 IL 120310, ¶ 24, 77 N.E.3d 615. In
Johnson, the court rejected a reading of the Act that would have permitted defendants to file
petitions “more than 20, 30, or even 50 years after an appeal, a period longer than any deadline
ever imposed by the Act.” Id. ¶ 21.
¶ 21 This court issued its ruling on direct appeal on April 25, 2016. Accordingly,
defendant had until November 30, 2016, to file his postconviction petition. Defendant pro se
filed his petition in August 2017, several months after the deadline. Additionally, as OSAD and
the trial court recognized, defendant’s attempts to file a late PLA and petition for certiorari
cannot extend the deadline. Such a reading of the Act would be impermissible because it would
allow defendants to wait “20, 30, or even 50 years after an appeal” to file a late petition for
certiorari and thereby sidestep the clear legislative purpose of the Act. Id. (We note that even
accepting defendant’s contention, defendant filed his late PLA and petition for certiorari well
after November 30, 2016, and therefore, such filings could not have tolled the deadline.) As
such, the trial court’s ruling was correct, and any argument to the contrary would be meritless
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under supreme court precedent.
¶ 22 B. Defendant Was Culpably Negligent
¶ 23 The Act provides that a defendant may file a petition after the deadline if he or
she “alleges facts showing that the delay was not due to his or her culpable negligence.” 725
ILCS 5/122-(c) (West 2016). “[T]he ‘culpably negligent’ standard contemplates ‘something
greater than ordinary negligence and is akin to recklessness.’ ” Johnson, 2017 IL 120310, ¶ 26
(quoting People v. Boclair, 202 Ill. 2d 89, 108, 789 N.E.2d 734, 745 (2002)). “Ignorance of the
law or legal rights will not excuse delay in bringing a lawsuit.” (Internal quotation marks
omitted.) Id. “[A] defendant’s reliance on the advice of jailhouse lawyers, a prison law clerk, and
a law librarian or paralegal [is] not reasonable when there [are] no facts alleged to show that they
had any specialized knowledge in postconviction matters,” and any such reliance is insufficient
to establish a lack of culpable negligence. Id. (citing People v. Lander, 215 Ill. 2d 577, 588, 831
N.E.2d 596, 603 (2005)). “We review a trial court’s ultimate conclusion as to whether the
established facts demonstrate culpable negligence de novo.” People v. Byrd, 2018 IL App (4th)
160526, ¶ 56, 138 N.E.3d 64.
¶ 24 In this case, as the trial court noted, defendant never provided any explanation for
why he could not at least attempt to follow the instructions and file a PLA or postconviction
petition. Defendant readily admitted he had access to the law library and law clerks to help him
with research. Further, defendant admitted he received the appropriate forms and instructions
from those resources in a timely manner. Instead, defendant made the decision to wait until he
found a “jailhouse lawyer” willing to help him, despite his ready knowledge that such assistance
would be very difficult to obtain given the nature of his convictions. The trial court’s conclusions
were supported by the information before it, and defendant’s case is, if anything, weaker than the
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defendants in Johnson and Lander. Accordingly, we agree with OSAD that no meritorious
argument exists that the court’s finding of culpable negligence was improper.
¶ 25 C. Postconviction Counsel Provided Reasonable Assistance
¶ 26 Last, OSAD contends it examined whether any meritorious argument exists that
postconviction counsel failed to provide reasonable assistance as required by Rule 651(c). The
Illinois Supreme Court has determined that the Act and Rule 651 require appointed counsel to
provide only reasonable assistance, a lower standard than that which the constitution requires at
trial. People v. Kuehner, 2015 IL 117695, ¶ 15, 32 N.E.3d 655. To provide reasonable assistance,
counsel must (1) consult with the defendant to determine the issues defendant wants to raise,
(2) examine the record of the proceedings in the trial court, and (3) make any amendment to the
petition necessary to adequately preserve defendant’s contentions. Id. Counsel is required to
make any amendments necessary to overcome procedural bars that will result in dismissal of the
petition if not rebutted, such as an argument that the defendant was not culpably negligent in
filing a late petition. People v. Perkins, 229 Ill. 2d 34, 44, 890 N.E.2d 398, 403 (2007). This
court reviews whether postconviction counsel complied with Rule 651(c) de novo. People v.
Mason, 2016 IL App (4th) 140517, ¶ 19, 56 N.E.3d 1141.
¶ 27 Here, postconviction counsel filed a Rule 651(c) certificate attesting that he
complied with the requirements of the rule. Further, counsel amended defendant’s pro se petition
and attached affidavits to support his argument that defendant’s petition was either (1) timely or
(2) not the result of defendant’s culpable negligence. The record demonstrates that counsel made
every effort to convince the trial court to excuse the untimely filing.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, OSAD’s motion to withdraw is granted, and the trial
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court’s judgment is affirmed.
¶ 30 Affirmed.
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