{ "id": 980718, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEN BURRIS, Defendant-Appellant", "name_abbreviation": "People v. Burris", "decision_date": "2000-07-31", "docket_number": "No. 2\u201499\u20140265", "first_page": "615", "last_page": "619", "citations": [ { "type": "official", "cite": "315 Ill. App. 3d 615" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "61 Ill. 2d 129", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2967040 ], "year": 1975, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0129-01" ] }, { "cite": "167 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222781 ], "year": 1995, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0353-01" ] }, { "cite": "105 Ill. App. 3d 437", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5468854 ], "year": 1982, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0437-01" ] }, { "cite": "325 U.S. 304", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156228 ], "weight": 3, "year": 1945, "pin_cites": [ { "page": "314" }, { "page": "1635" }, { "page": "1142" } ], "opinion_index": 0, "case_paths": [ "/us/325/0304-01" ] }, { "cite": "180 Ill. App. 3d 781", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2614395 ], "year": 1989, "pin_cites": [ { "page": "791", "parenthetical": "allegation that counsel's breath smelled strongly of alcohol during trial did not establish ineffective assistance in the absence of prejudice" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0781-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "292 Ill. App. 3d 185", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725141 ], "year": 1997, "pin_cites": [ { "page": "188-89" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0185-01" ] }, { "cite": "296 Ill. App. 3d 930", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222620 ], "year": 1998, "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0930-01" ] }, { "cite": "292 Ill. App. 3d 941", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725041 ], "year": 1997, "pin_cites": [ { "page": "943" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0941-01" ] }, { "cite": "40 Ill. 2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857395 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/40/0073-01" ] }, { "cite": "45 Ill. 2d 94", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896531 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/45/0094-01" ] }, { "cite": "293 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847580 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "115" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0113-01" ] }, { "cite": "189 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224794 ], "year": 1999, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/189/0001-01" ] } ], "analysis": { "cardinality": 634, "char_count": 10816, "ocr_confidence": 0.767, "pagerank": { "raw": 6.259415545405423e-08, "percentile": 0.38624742214700547 }, "sha256": "59c9b8c6df6ced7880e30bb7e1996008042e972827a8bc47ba66e01972e66f4c", "simhash": "1:bb1f9eb4b7851e50", "word_count": 1725 }, "last_updated": "2023-07-14T22:05:04.441996+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEN BURRIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE COLWELL\ndelivered the opinion of the court:\nDefendant, Len Burris, appeals the circuit court\u2019s order that dismissed as untimely his postconviction petition. Defendant contends that the petition demonstrates that the late filing was not due to his culpable negligence.\nDefendant was convicted following a jury trial of unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(d) (West 1998)) and unlawful production of cannabis sativa plants (720 ILCS 550/8(b) (West 1998)). Lawrence Tankus represented defendant during pretrial proceedings and at trial. On August 24, 1995, the court sentenced defendant to 24 months\u2019 probation.\nThe State filed a petition to revoke defendant\u2019s probation and apparently his probation was extended. On October 1, 1998, the State filed a second petition to revoke probation, alleging that defendant had been charged with unlawful possession of cannabis. On October 9, 1998, while represented by new counsel, defendant filed a postconviction petition alleging that he received the ineffective assistance of counsel at trial.\nThe petition alleges that Tankus ineffectively presented defendant\u2019s motion to quash his arrest and suppress evidence, did not thoroughly cross-examine a key prosecution witness, failed to present evidence that would have corroborated defendant\u2019s testimony that he did not reside at the apartment where the cannabis plants were found, presented an ineffective and unprofessional closing argument, and failed to file a notice of appeal despite defendant\u2019s request that he do so. The petition acknowledges that it was not. filed within the three-year statute of limitations but alleges that defendant was not culpably negligent in failing to timely file. According to the petition, defendant had learned only two months before that Tankus was using herdin at the time of defendant\u2019s trial and conducted the trial under the influence of the drug. Attached to the petition is a report from the Attorney Registration and Disciplinary Commission (ARDC) detailing Tankus\u2019s drug use and recommending to the supreme court that he be disbarred.\nAfter defendant filed his petition, the State withdrew its petition to revoke probation and defendant\u2019s probation was terminated. The State then moved to dismiss defendant\u2019s petition, contending that the court lacked jurisdiction because defendant was no longer serving his sentence. At the hearing, however, the State argued only that the petition was not filed within the limitations period and defendant\u2019s allegations did not establish that he was not culpably negligent. The trial court agreed and dismissed the petition. The State argued, and the court held, that defendant was aware of the substantive allegations comprising his ineffective assistance claim at the time of trial or shortly thereafter, and the fact that Tankus\u2019s conduct was the result of heroin use was simply irrelevant to whether he provided ineffective assistance. Therefore, the receipt of the ARDC report did not excuse the late fifing. Defendant filed a timely notice of appeal.\nDefendant claims that he was not culpably negligent for filing his petition late because he only learned of Tankus\u2019s heroin usage approximately two months earlier when he received the ARDC report. In response, the State renews its argument that defendant knew at the time of trial of Tankus\u2019s alleged deficiencies and the precise reason for Tankus\u2019s conduct is irrelevant. We agree.\nThe Post-Conviction Hearing Act provides that a petition thereunder must be filed, at the latest, within three years from the date of conviction \u201cunless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.\u201d 725 ILCS 5/122 \u2014 1 (West 1998). The three-year filing period is a statute of limitations. People v. Wright, 189 Ill. 2d 1, 8 (1999).\nFreedom from culpable negligence is very difficult to establish. People v. Perry, 293 Ill. App. 3d 113, 115 (1997); see People v. Montgomery, 45 Ill. 2d 94 (1970); People v. Diefenbaugh, 40 Ill. 2d 73 (1968). Erroneous advice from appellate counsel (People v. Lee, 292 Ill. App. 3d 941, 943 (1997)) and from prison officials (Perry, 293 Ill. App. 3d at 116) and the lack of access to a law library because the prison was on lockdown (People v. Mitchell, 296 Ill. App. 3d 930, 933 (1998); People v. McClain, 292 Ill. App. 3d 185, 188-89 (1997)) have been held not to excuse late filings.\nHere, defendant claims his late filing is excused because he did not know until August 1998 that Tankus was under the influence of heroin during defendant\u2019s trial. Quite simply, this fact does not form any part of defendant\u2019s claim. Defendant fails to cite to any provision of the constitution that guarantees him the right to drug-free counsel. Rather, the constitutional right defendant claims was violated is the right to the effective assistance of counsel. The petition\u2019s allegations make it very clear that defendant knew in 1995 the facts that he now claims show that Tankus was ineffective.\nA claim of ineffective assistance of counsel has two elements. A defendant must show that (1) his attorney\u2019s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984). That counsel was using alcohol or drugs at the time of defendant\u2019s trial does not establish per se ineffective assistance. See People v. White, 180 Ill. App. 3d 781, 791 (1989) (allegation that counsel\u2019s breath smelled strongly of alcohol during trial did not establish ineffective assistance in the absence of prejudice).\nDefendant\u2019s verified petition states:\n\u201cDuring the presentation of motions to quash, Tankus was performing under an obvious influence of heroin. *** Burris and others in the courtroom noticed that Attorney Tankus stumbled and staggered as he walked and that his clothes were extremely disheveled. His hair was messy and his face had a chalky color to it.\u201d\nThe petition further alleges as follows:\n\u201cAlthough Burris noticed Attorney Tankus appeared to be in a drug-induced stupor, he did not perceive that the stupor was caused by the continual use of heroin.\u201d\nThe petition further alleges as follows:\n\u201cEach morning Burris, who was twenty years old, had to pick up Tankus at his home and drive him to court because, as Tankus complained, he felt faint and could not drive himself. Burris, and all jurors, noticed and were aware of Tankus\u2019 wrinkled and stained suit, his messy hair, and ghostlike facial features. Furthermore, Tankus\u2019 speech was slurred and at times barely audible.\u201d\nFinally, the petition alleges that Tankus failed to file a notice of appeal although defendant specifically instructed him to and gave him money to cover filing fees. Two months later, after learning from his probation officer that no notice of appeal had been filed, defendant called Tankus and asked for an explanation. Tankus said that he had forgotten about filing the appeal but would \u201cmake things right.\u201d Several months later, defendant learned that Tankus had \u201ctotally abandoned him,\u201d not taking any further action on the appeal. Tankus explained that he had \u201cgotten lost\u201d for several months after defendant\u2019s sentencing.\nThese allegations clearly show that defendant was aware while the trial was in progress that Tankus appeared disheveled, slurred his speech, was unable even to drive himself to court, and appeared to be in \u201ca drug-induced stupor.\u201d The only fact defendant learned later was that Tankus\u2019s \u201cstupor\u201d was caused specifically by heroin, as opposed to some other drug or a mental illness. Moreover, defendant was aware, at least within \u201ca few months\u201d of sentencing, that Tankus had failed to file a notice of appeal. Whether that failure occurred because, as defendant alleges, Tankus was on a heroin binge or because, as Tankus said, he simply forgot is irrelevant. Clearly, defendant could have proceeded with his ineffective-assistance claim without knowing the particular substance to which Tankus was addicted.\nEven if the information in the ARDC report were somehow critical to defendant\u2019s claim, the petition alleges that he received this information two months before the petition was filed, or early in August 1998. The report attached to the petition is dated May 27, 1998. Defendant was sentenced August 25, 1995. Thus, even after receiving the ARDC report, defendant had a reasonable time to file his petition before the statute of limitations expired. The petition appears to have been filed in response to the State\u2019s petition to revoke probation rather than on the basis of anything in the ARDC report. The trial court did not err in finding that defendant failed to establish his lack of culpable negligence.\nDefendant also appears to argue that the alleged violations of his rights are so egregious that we should simply disregard the statute of limitations and consider them on the merits. A statute of limitations is by definition an arbitrary period after which all claims, including some meritorious ones, will be cut off. Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 89 L. Ed. 1628, 1635, 65 S. Ct. 1137, 1142 (1945); Nendza v. Board of Review of the Department of Labor, 105 Ill. App. 3d 437, 441 (1982). However, the need to avoid stale claims and bring actions to trial before the witnesses\u2019 memories have faded and evidence becomes unavailable sometimes outweigh the rights of the party bringing the action. Golla v. General Motors Corp., 167 Ill. 2d 353, 370 (1995); Tom Olesker\u2019s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 132 (1975). A statute of limitations mandating the dismissal only of actions that plainly lacked merit would be pointless.\nDefendant concedes that his petition was not filed within the three-year statute of limitations. He cites no case holding that the limitations period may be disregarded if the allegations are sufficiently serious. In the absence of any such authority, we are not free to disregard the plain language of the statute.\nThe judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nINGLIS and RAPP JJ., concur.", "type": "majority", "author": "JUSTICE COLWELL" } ], "attorneys": [ "James W. Reilley, of Arlington Heights, and William Thomas Freeman, Jr., of Freeman, Freeman & Associates, P.C., of Wheaton, for appellant.", "Joseph E. Birkett, State\u2019s Attorney (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Stephen H. DiNolfo, of Ottosen, Trevarthen, Britz & Dooley, Ltd., both of Wheaton, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEN BURRIS, Defendant-Appellant.\nSecond District\nNo. 2\u201499\u20140265\nOpinion filed July 31, 2000.\nJames W. Reilley, of Arlington Heights, and William Thomas Freeman, Jr., of Freeman, Freeman & Associates, P.C., of Wheaton, for appellant.\nJoseph E. Birkett, State\u2019s Attorney (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Stephen H. DiNolfo, of Ottosen, Trevarthen, Britz & Dooley, Ltd., both of Wheaton, for the People." }, "file_name": "0615-01", "first_page_order": 633, "last_page_order": 637 }