People v. Perry

SIXTH DIVISION
November 7, 1997

No. 1-95-3659

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 86-CR-8990
)
ARLO PERRY, ) Honorable
) Deborah M. Dooling,
Defendant-Appellant. ) Judge Presiding.

JUSTICE THEIS delivered the opinion of the court:

This is an appeal from an order of the circuit court dismissing
the pro se petition of defendant Arlo Perry (Perry) for post-
conviction relief under the Post-Conviction Hearing Act (the Act).
725 ILCS 5/122-1 et seq. (West 1994). In dismissing the untimely
filed petition, the circuit court determined Perry's delay in filing
was not excused under the Act's "culpable negligence" standard. On
appeal, Perry alleges dismissal of his petition was improper for two
reasons: (1) the circuit court erroneously failed to consider the
issue of Perry's lack of culpable negligence, and (2) Perry's factual
allegations established that his delay in filing was excusable. We
disagree.
Perry was convicted of murder in 1986. Approximately 30 days
later on November 13, 1986, he was sentenced to a 34-year prison term.
His conviction and sentence were affirmed on direct appeal. People v.
Perry, 183 Ill. App. 3d 534, 540 N.E.2d 379 (1989). On October 19,
1992, Perry filed a pro se post-conviction petition alleging various
violations of his constitutional rights. The State moved to dismiss
the petition as untimely based on the relevant statute of limitations,
which provides that a post-conviction petition cannot be filed more
than three years after conviction or more than six months after denial
of a petition for leave to appeal, whichever is later, unless the
petitioner can allege facts showing the delay was not caused by his
own culpable negligence. 725 ILCS 5/122-1 (West 1992).
Perry responded by filing an affidavit stating his failure to
file within the statutory period was based, in part, on his reliance
on a prisoner handbook, which listed 10 years as the time period in
which a post-conviction petition could be filed. In his affidavit,
Perry stated he came to the Illinois Department of Corrections at
Menard in December of 1986. He further claimed:
"I was given a book upon entering the
`IL.dept.of.corr. sentencing problems and related
issues'. A handbook for illinois prisoners
[sic]."
A copy of the relevant page of the handbook was attached to the
affidavit. Perry also alleged in his affidavit that the constant
"lock-down" at his prison limited his access to the prison's law
library so as to excuse his failure to discover the change in the
statute of limitations and his noncompliance with it. Perry's
affidavit included an attachment providing dates of "lock-down."
After a hearing, the court granted the State's motion to dismiss,
finding the defendant failed to file his petition within the statutory
period. Perry contends the trial court erred by dismissing the
petition.
The statute of limitations for post-conviction petitions was
changed, effective January 1, 1992, from 10 years to 3 years from the
date the prisoner was found guilty or six months from the date for
leave to appeal. 725 ILCS 5/122-1 (West 1992). Perry concedes his
petition of October 19, 1992, was filed outside the statutory period,
but asserts he was not culpably negligent in failing to comply. We
review the demonstration of culpable negligence under the Post-
Conviction Hearing Act de novo.
As the supreme court explained in People v. Bates, 124 Ill. 2d 81, 88, 529 N.E.2d 227, 230 (1988), the Post-Conviction Hearing Act
contains a unique statutory "`safety valve *** which acts as a
substitute for the judicially imposed `reasonable time rule"
generally used to determine the effect of shortened limitations
periods. See Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 420, 490 N.E.2d 665, 667 (1986). The Act enables petitioners to avoid the
effect of the shortened limitation period by showing their delay in
filing was not due to culpable negligence. Bates, 124 Ill. 2d at 88,
529 N.E.2d at 230. To demonstrate the absence of culpable negligence,
petitioners must allege facts justifying the delay. Bates, 124 Ill. 2d at 88, 529 N.E.2d at 230.
Freedom from culpable negligence is very difficult to establish.
People v. Montgomery, 45 Ill. 2d 94, 256 N.E.2d 802 (1970); People v.
Diefenbaugh, 40 Ill. 2d 73, 237 N.E.2d 512 (1968); People v.
Villanueva, 174 Ill. App. 3d 791, 529 N.E.2d 87 (1988); People v.
Harrison, 32 Ill. App. 3d 641, 336 N.E.2d 143 (1975). For example, in
Diefenbaugh, the petitioner alleged five separate, specific facts to
support the claim that his delay was not due to culpable negligence:
(1) he had completed only six grades of school, (2) he was
incarcerated during the five-year statutory period applicable at that
time, (3) he did not know what the law was, (4) he could not afford an
attorney, and (5) he was not given appointed counsel until after the
limitations period expired. Diefenbaugh, 40 Ill. 2d at 74, 237 N.E.2d
at 513. Faced with these facts, the supreme court determined
petitioner's delay was not excusable and stated "[n]one of these
reasons are sufficient to demonstrate a lack of culpable negligence on
the part of the petitioner and he does not rely upon them on this
appeal." Diefenbaugh, 40 Ill. 2d at 74, 237 N.E.2d at 513.
Applying the culpable negligence standard again in Montgomery,
the supreme court refused to excuse petitioner's untimely filing
despite his submission of psychiatric reports, which the court found
"generally indicate a condition of mental disturbance." Montgomery,
45 Ill. 2d at 96, 256 N.E.2d at 803. However, in concluding that
petitioner had failed to establish that he was not culpably negligent,
the court noted petitioner previously had been determined competent to
stand trial. Moreover, the court "carefully examined the several
psychiatric classification reports, and `special progress reports"
and only then determined "it does not appear that defendant was
incapable of exercising reasonable diligence in his pursuit of
relief." Montgomery, 45 Ill. 2d at 96, 256 N.E.2d at 803.
In this case, the record shows Perry alleged two facts to excuse
his delay: (1) the information allegedly given to him in the prisoner
handbook, and (2) the "lock-down" at his prison. Perry first argues
his reliance on an earlier version of the applicable statute contained
in a prisoner handbook is sufficient to show he was not culpably
negligent. Perry is mistaken.
As stated in his affidavit, Perry received the handbook upon
entering the Illinois Department of Corrections. Perry entered Menard
Correctional Center (Menard) in 1986. In 1986, the statute of
limitations for post-conviction petitions was 10 years rather than
three. Therefore, the information Perry received from the Department
of Corrections was accurate at the time Perry received it.
Nevertheless, Perry suggests that by providing him with the
handbook, the State assumed a duty to provide him with updated and
accurate information concerning changes in the Post-Conviction Hearing
Act shortening the filing period. Perry contends the State's failure
to do so excuses his failure to comply with the Act's statute of
limitations. Perry's affidavit also alleges that, even if he had been
informed of the change in the statute of limitations, Menard's "lock-
down" policy would have prevented him from complying, thereby excusing
his noncompliance.
Perry's affidavit presents no facts to support these claims.
First, the record is silent as to the contents of the prison library
at Menard. We cannot infer merely from Perry's ignorance of the
change in the statute of limitations that the library did not contain
updated and accurate information concerning post-conviction relief.
Thus, even if we were to accept Perry's premise that the Department of
Corrections assumed a duty to provide him with updated and accurate
information when it provided the handbook, we could not find that it
breached that duty on the facts stated.
Perry, though proceeding pro se at the time of his petition,
seeks to impose the duties attendant to competent counsel on the
Department of Corrections. However, as emphasized in People v.
Uppole, 228 Ill. App. 3d 281, 285-86, 591 N.E.2d 898, 901-02 (1992),
even at trial defendants cannot claim the right to reject services of
counsel and also claim the right to have access to the limitless range
of legal materials and information. Similarly, no such limitless
right exists for pro se prisoner petitioners, nor should de facto duty
of counsel be imposed on the Department of Corrections.
Alternatively, Perry asserts that, even if he had been informed
of the change, Menard's "lock-down" policy would have prevented his
timely filing by restricting his access to the prison law library.
However, Perry's speculation as to the possible effects of Menard's
"lock-down" policy does not support reversal of the circuit court's
decision. Moreover, the dates of "lock-down" included in the record
reveal several month-long periods when Perry was not under "lock-
down."
The facts contained in the record do not suggest that Perry's
delay in filing was excusable: (1) Perry received accurate
information upon entry to Menard; (2) Perry was not in "lock-down"
during several month-long periods; (3) Perry failed to plead facts as
to the contents of the law library; and finally (4) Perry alleged
merely a hypothetical injury he possibly could have received as a
result of his "lock-down."
Here, as in Montgomery, the circuit court considered the alleged
facts and determined they were insufficient to demonstrate a lack of
culpable negligence. The "lock-down" dates and the handbook
information were before the court and included in the record. Indeed,
the circuit court indicated it considered this information when it
stated it so ruled "even assuming [Perry's affidavit] is correct as
far as the dates of the lock down and the information given [Perry]."
Under existing precedent and the facts alleged, the circuit court
correctly determined Perry's untimely filing was not excused.
Accordingly, we affirm the judgment of the circuit court.
Affirmed.
QUINN, J., concurs.
ZWICK, J., dissents.

JUSTICE ZWICK, dissenting:
I dissent.
Petitioner alleged that at the time he was convicted and
incarcerated, he received a prisoner handbook from the Illinois
Department of Corrections which officially advised that he had 10
years to file a petition pursuant to the Post-Conviction Act. The
legislature subsequently modified the Post-Conviction Act, shortening
the filing period from 10 years to three years, effective January 1,
1992. However, petitioner was never informed of this modification or
its impact upon his rights. This modification effectively terminated
this avenue of redress for petitioner immediately upon passage.
In my view, it is unconscionable to apply the statutory language
in such a manner as to erect an insurmountable barricade to a pre-
existing statutory right. I am persuaded by the logic and reasoning
of Justice Clark's dissent in People v. Bates, 124 Ill. 2d 81, 529 N.E.2d 227 (1988). Not only law, but decency and principles of fair
play demand that the petitioner be given a reasonable time to file his
post-conviction petition when the effect of the statute is to
immediately and prematurely terminate his vehicle for challenging
constitutional correctness. See Bates, 124 Ill. 2d at 90-92 (Clark,
J., dissenting).
It is clear that the petitioner here is free from any negligence,
let alone culpable negligence. My research has not disclosed any
decision in which the court found that the delay in filing a late
post-conviction petition could be excused because of an absence of
"culpable negligence" by the petitioner. It seems that the courts
have universally emasculated the "absence of culpable negligence"
language in the statute. Even mental illness isn't enough to justify
a delay. This construction effectively nullifies the intent of the
legislature as expressed in the clear statutory language.
In the instant case, the problem is even more egregious because
the petitioner's confusion was created by the conduct of the
Department of Corrections. Although the Department of Corrections was
under no obligation to inform inmates of their post-conviction rights,
it did so in the prisoners' handbook. In the instant case, the
Department of Corrections was a "volunteer" and caused the predicament
facing the petitioner. Once having volunteered, the Department was
under a duty to notify inmates of the change in the post-conviction
statute of limitations. This would have been a very easy task, and
the failure cannot be excused to the detriment of the petitioner.
It is clear that the petitioner in this case has alleged
sufficient facts to bring the lack of culpable negligence into play,
thereby removing the jurisdictional bar.