{ "id": 4265068, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAHMAL PERKINS, Defendant-Appellant", "name_abbreviation": "People v. Perkins", "decision_date": "2006-10-06", "docket_number": "No. 2\u201404\u20140127", "first_page": "895", "last_page": "908", "citations": [ { "type": "official", "cite": "367 Ill. App. 3d 895" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "212 Ill. 2d 192", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2444097 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "205-09" }, { "page": "205-09" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/212/0192-01" ] }, { "cite": "337 Ill. App. 3d 759", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 894470 ], "year": 2003, "pin_cites": [ { "page": "762-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/337/0759-01" ] }, { "cite": "342 Ill. App. 3d 1100", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472908 ], "year": 2001, "pin_cites": [ { "page": "1103-04" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/1100-01" ] }, { "cite": "336 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599218 ], "year": 2002, "pin_cites": [ { "page": "14", "parenthetical": "noting that, although a reviewing court may consider unbriefed issues sua sponte, it should decline to do so when doing so will \"transform[ ] th[e] court's role from that of jurist to advocate\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0001-01" ] }, { "cite": "357 Ill. App. 3d 946", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4135817 ], "year": 2005, "pin_cites": [ { "page": "950-54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/357/0946-01" ] }, { "cite": "364 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4263323 ], "year": 2006, "pin_cites": [ { "page": "314", "parenthetical": "counsel's decision not to ask alleged rape victim at trial whether or not she consented to the sexual contact found reasonable independently of prejudice" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0304-01" ] }, { "cite": "143 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591273 ], "year": 1991, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0210-01" ] }, { "cite": "47 Ill. 2d 42", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905635 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "46" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0042-01" ] }, { "cite": "3 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2695011 ], "year": 1954, "pin_cites": [ { "page": "447", "parenthetical": "both proto -Strickland cases involving trial counsel" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/3/0437-01" ] }, { "cite": "33 Ill. 2d 349", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2885820 ], "year": 1965, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0349-01" ] }, { "cite": "34 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2880599 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "411-12" }, { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0402-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 15, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "699-700" }, { "page": "700-01" }, { "page": "2070-71", "parenthetical": "counsel's decision of which mitigating evidence to present at sentencing found reasonable independently of prejudice prong" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "324 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256291 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "556-57" }, { "page": "554-55" }, { "page": "555" }, { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0553-01" ] }, { "cite": "154 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821172 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "247" }, { "page": "243-45" }, { "page": "243-45" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0227-01" ] }, { "cite": "353 Ill. App. 3d 244", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3364068 ], "year": 2004, "pin_cites": [ { "page": "250-51" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0244-01" ] }, { "cite": "361 Ill. App. 3d 963", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4259860 ], "year": 2005, "pin_cites": [ { "page": "967" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0963-01" ] }, { "cite": "139 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574172 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "364" }, { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0351-01" ] }, { "cite": "215 Ill. 2d 577", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060496 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "583-84" }, { "page": "585" }, { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0577-01" ] }, { "cite": "187 Ill. 2d 406", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131043 ], "weight": 11, "year": 1999, "pin_cites": [ { "page": "410" }, { "page": "412" }, { "page": "410" }, { "page": "410" }, { "page": "410" }, { "page": "412" }, { "page": "416" }, { "page": "413" }, { "page": "415" }, { "page": "415-16" }, { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0406-01" ] }, { "cite": "361 Ill. App. 3d 450", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4259812 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "453" }, { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/361/0450-01" ] }, { "cite": "217 Ill. 2d 324", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875495 ], "year": 2005, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0324-01" ] }, { "cite": "174 Ill. 2d 410", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 223616 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "418" }, { "page": "418" }, { "page": "418" }, { "page": "418" }, { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/174/0410-01" ] }, { "cite": "183 Ill. 2d 213", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209974 ], "year": 1998, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0213-01" ] }, { "cite": "356 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3750348 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "425" }, { "page": "425" }, { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/0420-01" ] }, { "cite": "184 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926975 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/184/0462-01" ] } ], "analysis": { "cardinality": 1146, "char_count": 34412, "ocr_confidence": 0.766, "pagerank": { "raw": 4.942357484831482e-08, "percentile": 0.30981729050612605 }, "sha256": "e87f9444e933b7c4df96fabdf0489f3cb7749ffcfda497260fa5ddd10a7b9450", "simhash": "1:bbaa775873e5357f", "word_count": 5546 }, "last_updated": "2023-07-14T20:55:49.400377+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. JAHMAL PERKINS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nDefendant, Jahmal Perkins, appeals from the dismissal of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2002)). He contends that the assistance of counsel he received was less than the reasonable assistance due him under the Act. Specifically, he asserts that postconviction counsel\u2019s defense of his petition against the State\u2019s motion to dismiss for untimeliness showed that counsel was unfamiliar with the applicable legal principles. The State responds that defendant has presented nothing to suggest that he could have successfully defended against its motion to dismiss had counsel argued according to proper principles, and, because defendant has failed to show any prejudice, the State asserts that the law does not require a remand. We agree with defendant that postconviction counsel\u2019s arguments show a misunderstanding of the law, which may have caused him to fail to investigate whether facts existed that would have supported legally sound arguments. Further, we conclude that a defendant need not show that postconviction counsel\u2019s less-than-reasonable assistance prejudiced him or her. We therefore vacate the dismissal and remand the matter to the trial court.\nI. BACKGROUND\nA jury convicted defendant of armed violence (720 ILCS 5/33A \u2014 2 (West 1996)) predicated on residential burglary (720 ILCS 5/19 \u2014 3 (West 1996)), residential burglary, home invasion (720 ILCS 5/12\u2014 11(a)(1) (West 1996)), and aggravated battery (720 ILCS 5/12 \u2014 4(b)(1) (West 1996)). He received concurrent sentences for all four convictions: 24 years\u2019 imprisonment for the armed violence, residential burglary, and home invasion convictions, and 5 years\u2019 imprisonment for the aggravated battery conviction. Defendant appealed, asserting among other things that under People v. Lombardi, 184 Ill. 2d 462 (1998), the penalty for armed violence involving a category I weapon and predicated on residential burglary or home invasion violated the proportionate penalties clause of the Illinois Constitution. This court agreed and vacated the armed violence conviction and the conviction of the lesser included offense of residential burglary. We ordered the clerk to correct the mittimus to reflect the vacated convictions. People v. Perkins, No. 2 \u2014 98\u20141294 (2001) (unpublished order pursuant to Supreme Court Rule 23). The mandate issued on July 20, 2001.\nOn October 17, 2002, defendant mailed a \u201cPetition to Vacate the Void Sentencing Judgment\u201d and a \u201cPetition for Postconviction Relief\u2019 to the circuit court. In the postconviction petition, he contended that the imposition of a term of mandatory supervised release (MSR) was unconstitutional in conjunction with determinate sentencing. In the \u201cPetition to Vacate the Void Sentencing Judgment,\u201d he contended that trial counsel had filed \u201cseveral crucial motions\u201d and a postconviction petition without notifying defendant. He also stated that the supreme court was considering issues relevant to his case in \u201cPeople v. Evans, Washington, Case[ ]# 93959, 95951 and 84952\u201d and that in these cases the court had found sentencing error.\nThe court appointed the public defender to represent defendant, apparently treating both filings as a single postconviction petition. At an early status hearing, the State mentioned that it expected to file a motion to dismiss after defendant filed his amended petition. Shortly after that, counsel stated that he had correspondence from defendant and that he wanted to be sure that the amended petition incorporated everything that defendant wanted it to. On August 25, 2003, counsel filed a certificate pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)), stating, inter alia, that no amendment was necessary for an adequate presentation of the issues. On October 20, 2003, the State moved to dismiss the petition as untimely. The parties agreed below (and agree on appeal) that defendant filed the petition outside the time provided by the Act.\nOn January 26, 2004, the court heard argument on the State\u2019s motion to dismiss. Counsel asserted the merits of the petition, contending that defendant\u2019s \u201c[flirst and foremost\u201d contention was \u201cthat the sentencing Court improperly took into consideration charges which were overturned on appeal [i]n sentencing the defendant.\u201d He asserted that this claim was a part of the \u201cPetition to Vacate the Void Sentencing Judgment.\u201d The State argued only the petition\u2019s untimeliness; it asserted that defendant filed the petition beyond the last regular filing date for a postconviction petition and that he did not allege his lack of culpable negligence for the late filing. In response, counsel argued that, when this court vacated two of defendant\u2019s convictions, it changed his sentences, restarting the time for filing a petition. He further argued that defendant could not have timely raised the trial court\u2019s improper consideration of the vacated sentences because the issue did not exist until this court vacated the two convictions. Finally, he argued that the limitations period for filing a petition was flexible and that the court could take into account the unfairness of defendant having been sentenced in part based on vacated convictions. The court granted the motion to dismiss, and defendant appealed.\nOn appeal, defendant argues that counsel failed to provide reasonable assistance, because he relied on arguments for the petition\u2019s timeliness that are contradicted by binding authority. Defendant contends that these arguments showed a lack of understanding of the law regarding timeliness. We take defendant to imply that, because counsel was unaware of the law, he probably did not ask defendant the questions necessary to amend the petition to allege a lack of culpable negligence in filing late. The State responds with two arguments. First, it asserts that because untimeliness is an affirmative defense, postconviction counsel need not anticipatorily amend a petition to allege a lack of culpable negligence in filing late. Instead, it asserts, counsel need address the issue only in response to the State\u2019s motion to dismiss. Second, citing People v. Vasquez, 356 Ill. App. 3d 420, 425 (2005), the State argues that defendant has failed to show that facts existed such that counsel could have amended the petition to assert a lack of culpable negligence for his untimely filing. Therefore, the State asserts, defendant has not shown that counsel\u2019s failure to amend the petition prejudiced defendant. (The State does not claim, we note, that counsel\u2019s failure to address timeliness more cogently caused no prejudice for the additional reason that defendant\u2019s petition would have been dismissed for lack of merit even if its untimeliness was excused.)\nII. ANALYSIS\nUnder the Act, an imprisoned defendant can mount a collateral attack on his conviction or sentence by alleging that either was the consequence of violations of his constitutional rights. People v. Erickson, 183 Ill. 2d 213, 222 (1998). Proceedings under the Act, where the defendant is not under a sentence of death, have up to three stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At the first stage, the trial court examines the petition independently and should summarily dismiss it if it is frivolous or patently without merit. 725 ILCS 5/122\u2014 2.1(a)(2) (West 2002); Gaultney, 174 Ill. 2d at 418. If the court does not summarily dismiss the petition, it proceeds to the second stage. At this stage, an indigent defendant is entitled to appointed counsel, counsel may amend the petition, and the State may answer or move to dismiss the petition. Gaultney, 174 Ill. 2d at 418. The court should dismiss the petition \u201cwhen the allegations in the petition, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation.\u201d People v. Hall, 217 Ill. 2d 324, 334 (2005). However, the State may move to dismiss the petition on the basis that the defendant did not file the petition within the statutory time limit. People v. Ramirez, 361 Ill. App. 3d 450, 453 (2005). If the State does so move, and the defendant did file late, the court should dismiss the petition unless the defendant can show that the late filing was not due to his culpable negligence. Ramirez, 361 Ill. App. 3d at 453. If the court does not dismiss the petition at the second stage, the proceeding advances to the third stage, at which an evidentiary hearing is held. Gaultney, 174 Ill. 2d at 418.\nUnder section 122 \u2014 4 of the Act (725 ILCS 5/122 \u2014 4 (West 2002)), an indigent postconviction petitioner is entitled to appointed counsel if the court has not dismissed his or her petition at the first stage. However, the right is purely statutory rather than constitutional (People v. Turner, 187 Ill. 2d 406, 410 (1999)), and under the Act, the petitioner is entitled only to a \u201c \u2018reasonable level of assistance\u2019 \u201d (emphasis omitted) (People v. Lander, 215 Ill. 2d 577, 583-84 (2005), quoting People v. Owens, 139 Ill. 2d 351, 364 (1990)). Reasonable assistance includes compliance with the specific obligations of Rule 651(c). People v. Bashaw, 361 Ill. App. 3d 963, 967 (2005). Under that rule, counsel must certify, or the record on appeal must otherwise show, that counsel \u201chas consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner\u2019s contentions.\u201d 134 Ill. 2d R. 651(c). When the record demonstrates that counsel has failed to provide the representation required by Rule 651(c), counsel\u2019s certificate that he has done so is ineffective to establish compliance. See People v. Waldrop, 353 Ill. App. 3d 244, 250-51 (2004).\nThe first issue this case presents is what postconviction counsel\u2019s specific duties are with respect to a petition filed outside the statutory time. In particular, we must ask whether counsel has a duty to attempt to amend such a petition to show that its lateness was not due to the defendant\u2019s culpable negligence.\nPostconviction counsel normally has no duty to go beyond the record and the evidence mentioned in the petition to find new evidence supporting a defendant\u2019s claims. People u. Johnson, 154 Ill. 2d 227, 247 (1993). Further, Rule 651(c) does not specifically mention any duty of counsel to seek facts to respond to an untimeliness claim. Therefore, one could argue that consulting with a defendant to get evidence to overcome an untimeliness claim is beyond counsel\u2019s duty.\nOn the other hand, counsel is to amend the petition to make \u201c \u2018an adequate presentation of petitioner\u2019s contentions.\u2019 \u201d Turner, 187 Ill. 2d at 412, quoting 134 Ill. 2d R. 651(c). We do not think that counsel has made an adequate presentation of a defendant\u2019s claims if he or she has not attempted to help the defendant avert dismissal for a reason other than the merits of the claim. Certainly, a technical issue such as timeliness is a matter where a defendant may need assistance. We partially addressed this issue in People v. Robinson, 324 Ill. App. 3d 553, 556-57 (2001), in which we held that postconviction counsel was inadequate in defending against a motion to dismiss for untimeliness. The failure there was striking: the record contained evidence that the defendant had such severe cognitive disabilities that he would have had trouble even understanding the concept of timeliness. Robinson, 324 Ill. App. 3d at 554-55. However, when explicitly asked by the court whether any evidence suggested that the lateness was not due to the defendant\u2019s culpable negligence, counsel told the court that he had written to the defendant, explained the timeliness requirements and asked for facts that would excuse the late filing, but the defendant told him only that he believed that the petition was not late. Robinson, 324 Ill. App. 3d at 555. We held that, based on the record facts, postconviction counsel should have, at a minimum, advised the trial court that the defendant\u2019s mental condition may have caused him to file the petition late. Robinson, 324 Ill. App. 3d at 557. We deem that, when postconviction counsel is faced with a petition filed outside the regular statutory period, to make an adequate presentation of the defendant\u2019s contentions counsel must make a reasonable attempt to find out if any proper excuse exists for the late filing. This would include at least recognizing whether the record suggested any excuse (per Robinson) and inquiring of the defendant. If a possible excuse is apparent, counsel must act to make sure it is adequately presented to the court.\nThe State makes a narrower argument. It contends that, although defendant argues that counsel had a duty to amend the petition to allege defendant\u2019s lack of culpable negligence, counsel had no duty to defend against an untimeliness claim until the State moved to dismiss on that basis. That is, it claims that counsel need not anticipate that the State will move to dismiss on timeliness grounds. Assuming that the State is correct, that does not change counsel\u2019s obligation to provide a reasonable defense against the motion, anticipatorily or otherwise. As we will later discuss, counsel never did this. The question of when counsel\u2019s obligation arose is thus immaterial.\nGiven that a defendant does have a right to reasonable assistance in fighting the State\u2019s untimeliness defense to his or her petition, the next question we must address is what test determines when he or she is entitled to relief. We must decide whether it is enough for a defendant to show that postconviction counsel provided less-than-reasonable assistance, or whether he or she must also show that the less-than-reasonable assistance caused him or her prejudice. If one assumes a two-prong test, analogous to that in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984), showing that counsel here acted without understanding how to defend a late-filed petition against dismissal for untimeliness would satisfy only the first (lack of reasonable assistance) prong. To satisfy the second (prejudice) prong, defendant would have to show, at a minimum, some possibility that with reasonable assistance he could have alleged facts such that the court would not have dismissed the petition for untimeliness. Because, as we discussed, the right to post-conviction counsel is statutory, not constitutional, Strickland is not automatically applicable to claims of less-than-reasonable assistance of postconviction counsel.\nThe determinative question here is what defendant must show beyond the mishandling of his case by postconviction counsel, that is, the extent to which defendant must show that counsel\u2019s errors harmed him. Were this a claim of ineffective assistance of trial counsel, made on direct appeal, defendant\u2019s right to counsel would derive from the sixth amendment (U.S. Const., amend. VI), and we would decide by the test in Strickland whether counsel had been ineffective. As noted, that is not the relevant standard here. Nevertheless, the Strickland test is an essential standard for comparison. Under that test, a court should not reverse a conviction because of ineffective assistance of counsel unless the defendant shows (1) \u201cthat counsel made errors so serious that counsel was not functioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment\u201d and (2) that \u201cthe deficient performance prejudiced the defense.\u201d Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Showing prejudice requires demonstrating that \u201cthere is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. \u201cA reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.\nAgain, the right to counsel under the Act is purely statutory (Turner, 187 Ill. 2d at 410) and Strickland is thus not applicable, except potentially by analogy. Notably, for defendants not under the death sentence, the statutory right to counsel attaches only if a trial court reviews the defendant\u2019s petition and finds it to be neither frivolous nor patently without merit, or the trial court fails to enter a contrary finding within 90 days. Gaultney, 174 Ill. 2d at 418; 725 ILCS 5/122 \u2014 4 (West 2002). When the right attaches is not the sole defining feature of the right, however. We therefore first review the scope of the right to counsel under the Act before considering the cases that decide when a defendant is entitled to relief for substandard performance.\nA core feature of a defendant\u2019s right to counsel under the Act is the entitlement to have counsel amend the original petition to make an adequate presentation of the defendant\u2019s contentions. The Act does not explicitly state this entitlement; courts interpret the Act to give defendants a right to, simply, a \u201c \u2018reasonable level of assistance.\u2019 \u201d (Emphasis omitted.) Turner, 187 Ill. 2d at 410, quoting People v. Owens, 139 Ill. 2d 351, 364 (1990). However, Rule 651(c) makes explicit some of the duties that a \u201creasonable level of assistance\u201d implies. See Turner, 187 Ill. 2d at 410. As noted, the rule requires a showing that counsel has \u201cconsulted with petitioner *** to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner\u2019s contentions\u201d (134 Ill. 2d R. 651(c)). Courts treat a failure to do any of these things as a violation of the rule. E.g., Turner, 187 Ill. 2d at 412. We will refer to the duties listed in Rule 651(c) as the Rule 651(c) mandates. Because Rule 651(c) sets out entitlements inherent in the statutory right to counsel, a failure to satisfy a Rule 651(c) mandate is a violation of both the statutory right and the rule.\nIllinois cases addressing claims of unreasonable assistance of post-conviction counsel fall into two lines, based on whether they apply a Strickland-like analysis, requiring the defendant to make a positive showing of prejudice, or whether they apply Rule 651(c). The Strickland-like line begins with People v. Ashley, 34 Ill. 2d 402, 411-12 (1966). The other line, typified by Turner and Johnson, is rooted in the enforcement of Rule 651(c). It plainly rejects a Strickland-like prejudice analysis but without explicitly foreclosing use of a harmless-error analysis.\nAshley and its progeny use a Strickland-like prejudice standard to evaluate claims of insufficient representation by postconviction counsel. (This line of cases originated before Strickland itself, but not before the principles familiar from Strickland were current in Illinois law.) Ashley stated:\n\u201cWhile petitioner strenuously argues that his representation in the post-conviction proceedings by appointed counsel was so inadequate, indifferent to his cause and incompetent as to amount to no representation at all, it is well settled that in order to establish incompetency of counsel, actual incompetent representation and substantial prejudice to the defendant as a result thereof must be established.\u201d Ashley, 34 Ill. 2d at 411, citing People v. Gray, 33 Ill. 2d 349, 355 (1965), and People v. Morris, 3 Ill. 2d 437, 447 (1954) (both proto -Strickland cases involving trial counsel).\nMore directly on point is the later People v. Stovall, 47 Ill. 2d 42, 46 (1970):\n\u201cAbsent a showing of available material for supporting affidavits, a failure to present affidavits obviously cannot be considered a neglect by the attorney.\n*** Where there is not a showing that sufficient facts or evidence exist[s], inadequate representation certainly will not be found because of an attorney\u2019s failure to amend a petition or, when amended, failing to make the petition\u2019s allegations factually sufficient to require the granting of relief.\u201d Stovall, 47 Ill. 2d at 46.\nThe supreme court most recently used this kind of analysis in People v. Spreitzer, 143 Ill. 2d 210, 221 (1991), which quotes from the passage in Stovall given above.\nThe State cites this court\u2019s decision in Vasquez, but that case does not decide whether a defendant whose postconviction counsel failed to comply with Rule 651(c) must also show consequent prejudice in order to obtain relief. In Vasquez, we held that postconviction counsel was not required under Rule 651(c) to include a new claim in the defendant\u2019s postconviction petition. We then said:\n\u201cEven if it could be shown that postconviction counsel should have amended the petition to allege a violation of the Vienna Convention, to establish that postconviction counsel provided inadequate representation, defendant must show that the petition could have been amended to state a case upon which relief could be granted. [Citation.]\u201d Vasquez, 356 Ill. App. 3d at 425.\nWe went on to explain that the claim that the defendant urged should have been included in his petition would not have stated a cause of action upon which relief could be granted. Vasquez, 356 Ill. App. 3d at 425.\nHaving found in Vasquez that the defendant received the assistance required by Rule 651(c), we did not need to reach the question of whether our conclusion would have changed had we found that counsel failed to meet the requirements of Rule 651(c) by omitting the claim. We did, nevertheless, opine that the defendant\u2019s position was not compromised by the omission of the claim, because the claim would not have afforded him relief. However, because our opinion on this was not necessary to decide the case, it was a dictum. Vasquez, therefore, does not hold that a defendant whose postconviction counsel failed to discharge his duty under Rule 651(c) must show resultant prejudice.\nMoreover, Vasquez presented a factual situation where, had the court applied a Strickland-type performance/prejudice analysis, the two prongs would have collapsed into one, because counsel\u2019s failure to raise the issue of trial counsel\u2019s omission of the Vienna Convention claim could not have been deemed inadequate performance (prong one) unless that issue had merit such that it would have changed the outcome of the postconviction proceeding (prong two). There are, however, situations where Strickland\u2019s performance and prejudice prongs are not so intertwined, allowing the adequacy of counsel\u2019s performance to be examined independently of the prejudice question. See, e.g., Strickland, 466 U.S. at 699-700, 80 L. Ed. 2d at 700-01, 104 S. Ct. at 2070-71 (counsel\u2019s decision of which mitigating evidence to present at sentencing found reasonable independently of prejudice prong); People v. Rodriguez, 364 Ill. App. 3d 304, 314 (2006) (counsel\u2019s decision not to ask alleged rape victim at trial whether or not she consented to the sexual contact found reasonable independently of prejudice).\nTurner and Johnson take a different approach from Ashley and its progeny. In Turner, the court reversed the dismissal of a postconviction petition, stating that it \u201c[would] not speculate\u201d on what the outcome would have been if \u201ccounsel had adequately performed his duties under Rule 651(c).\u201d Turner, 187 Ill. 2d at 416. Postconviction counsel\u2019s performance was inadequate in two ways: (1) he failed to amend the petition to cure a waiver problem by alleging that appellate counsel had been ineffective in not raising certain matters on direct appeal; and (2) he failed to amend the petition to state a claim for ineffective assistance of trial counsel under the Strickland standard by alleging that counsel\u2019s incompetent decisions had prejudiced the defendant. Turner, 187 Ill. 2d at 413. The court did not discuss whether the record suggested the existence of facts that would make these new claims viable.\nIn Turner, the State asserted that reversal was unnecessary because the petition was without merit and thus the defendant could not show prejudice. Without addressing the merit of the petition, the court observed that there was a \u201cpalpable\u201d prejudice because counsel\u2019s failure to cure the waiver problem \u201cprecluded consideration of [the defendant\u2019s] claims on the merits and directly contributed to the dismissal of the petition without an evidentiary hearing.\u201d Turner, 187 Ill. 2d at 415. However, we do not take the court to have established a lower \u201cdirect contribution\u201d standard of prejudice that a defendant must satisfy to obtain reversal. Indeed, the court went on to reject the State\u2019s argument \u201c[o]n a more fundamental level,\u201d holding that a dismissal is improper when \u201cpost-conviction counsel\u2019s performance was so deficient that it amounts to virtually no representation at all,\u201d i.e., when counsel had not \u201cadequately performed his duties under Rule 651(c).\u201d Turner, 187 Ill. 2d at 415-16. Thus, the court suggested its adherence to the general proposition that, when counsel fails to comply with Rule 651(c), no showing of prejudice is necessary. See Lander, 215 Ill. 2d at 585.\nIn Johnson, the court held that counsel failed to fulfill his duties under Rule 651(c) in that he failed to contact witnesses whom the defendant named in his petition. Johnson, 154 Ill. 2d at 243-45. Counsel\u2019s failure precluded the court from affirming a dismissal based on a lack of affidavits from these witnesses, although, naturally enough, nothing in the record showed that the witnesses\u2019 testimony would have been enough to make the petition viable. Johnson, 154 Ill. 2d at 243-45.\nTurner and Johnson are the supreme court\u2019s most recent word on this issue, and we therefore follow them. The holdings in Turner and Johnson clearly exclude requiring a defendant to make a positive, Strickland-type showing that his counsel\u2019s failure to comply with Rule 651(c) caused prejudice. A question remains about whether postconviction counsel\u2019s failure to provide the assistance required by Rule 651(c) is subject to a harmless-error analysis. The holdings in Turner and Johnson do not explicitly resolve that issue, and we do not resolve it here. We recognize that a First District panel, noting that the State had apparently not raised the issue in Turner and Johnson, held in People v. Sargent, 357 Ill. App. 3d 946, 950-54 (2005), that a harmless-error analysis was proper. We do not think that it is appropriate to now decide whether we will adhere to Sargent. That case was decided too late for defendant to address it in his brief, and the State did not cite it or otherwise suggest the applicability of a harmless-error analysis. The supreme court in Turner and Johnson evidently deemed it appropriate to reserve judgment on whether a harmless-error analysis applied when the State did not advocate such a position. The circumstances here suggest that a similar result is just. To decide this issue in favor of the State, we would need to become its advocate, which we deem to be inappropriate. See People v. Rodriguez, 336 Ill. App. 3d 1, 14 (2002) (noting that, although a reviewing court may consider unbriefed issues sua sponte, it should decline to do so when doing so will \u201ctransform[ ] th[e] court\u2019s role from that of jurist to advocate\u201d). Further, although our initial review of defendant\u2019s petition suggests that it contains uncorrectable legal flaws, postconviction counsel\u2019s insistence that defendant\u2019s claim is different from that which we deem is apparent from the petition raises questions about what claim we would be considering. We therefore decline to decide whether we can deem any error here to be harmless.\nFollowing the analyses in Turner and Johnson, we conclude that postconviction counsel here violated Rule 651(c). Postconviction counsel argued (1) that defendant\u2019s petition was timely because our order vacating two of defendant\u2019s convictions changed defendant\u2019s sentence and thus restarted the time for defendant to file a petition, (2) that defendant could not raise his sentencing argument until we decided his direct appeal as we did, and (3) that the time for filing a petition is subject to flexibility in the interests of justice. All these arguments are legally without merit.\nThe argument that a change in a sentence restarts the time to file a petition was rejected by the First District in People v. Langston, 342 Ill. App. 3d 1100, 1103-04 (2001). We adopted the reasoning of Langston in People v. Wright, 337 Ill. App. 3d 759, 762-63 (2003). Both cases predated postconviction counsel\u2019s attempt to argue that our vacation of two of defendant\u2019s convictions made his petition timely.\nThe argument that defendant could not have raised certain sentencing issues until after we decided his direct appeal fails for several reasons. The simplest of these is that, accepting for the sake of argument that our resolution of the appeal did create new issues, defendant does not explain why he needed as long as he did after we issued our resolution to file his petition. Defendant filed his petition 15 months after we issued our mandate. We can accept that a defendant might routinely need months to draft a petition in response to an issue created by an appellate disposition. However, although we cannot say that 15 months would always be longer than a court should allow, we believe that such a delay requires at least some explanation.\nPostconviction counsel\u2019s argument that the time for filing the petition is subject to flexibility in the interests of justice suggests that counsel was unfamiliar with the framework of the Act as it relates to the time for filing. Section 122 \u2014 1(c) of the Act, as then written, stated that \u201c[n]o proceedings *** shall be commenced [under the Act and outside the specified time frame] unless the petitioner alleges facts showing that the delay was not due to his or her culpable negligence.\u201d 725 ILCS 5/122 \u2014 1(c) (West 2002). The only flexibility in the service of justice is the State\u2019s to exercise: \u201cA dutiful prosecutor may waive [the timeliness] defense at the second stage of the postconviction proceedings if an untimely petition demonstrates the defendant suffered a deprivation of constitutional magnitude.\u201d Lander, 215 Ill. 2d at 584. Postconviction counsel\u2019s argument seems to spring from no known legal source and to ignore the obvious authorities.\nWe conclude that postconviction counsel\u2019s representation of defendant was less than the reasonable representation he was due under the Act. We do so with some trepidation. We do not wish to be understood to hold that postconviction counsel provides less-than-reasonable representation simply because he or she makes a bad argument. It is the nature of a defense lawyer\u2019s job that he or she must make the best of what may turn out to be hopeless facts. A weak or far-fetched argument may nevertheless be the least bad of all those possible; we would not suggest that an attorney has committed a dereliction for making such an argument. Furthermore, statements made at oral argument, as those of postconviction counsel were here, are not necessarily as thought out as written arguments are.\nThat said, some arguments can unambiguously betray a lack of familiarity with the applicable law. That happened here when counsel asserted the flexibility of the time for filing a petition. The problem is not that counsel made such an argument, but that he did so without reference to the culpable negligence standard or any of the other underpinnings of the rules of timeliness under the Act. An argument ungrounded in the basic principles of the applicable law is unreasonable, even as a last-ditch effort. We can interpret it only as a sign of counsel\u2019s unfamiliarity with those basic principles. We therefore have no reason to believe that counsel has investigated whether facts exist that would excuse defendant\u2019s late filing of his petition.\nIII. CONCLUSION\nBecause defendant did not receive reasonable assistance of counsel in defending against the State\u2019s motion to dismiss, the dismissal should not stand. Therefore, for the reasons given, we vacate the trial court\u2019s dismissal of defendant\u2019s petition and remand the matter for defendant to receive appropriate assistance with his defense against the motion.\nVacated and remanded.\nGROMETER, EJ., and CALLUM, J., concur.\nAs best we can determine, defendant is referring to Lombardi-, two defendants whose appeals the supreme court consolidated with Lombardi\u2019s were named Evans and Washington, and No. 84952 is one of the docket numbers associated with Lombardi. The other two docket numbers are those of cases in which the court denied leave to appeal.\nTurner and Johnson were both death penalty cases, meaning that the defendants were automatically entitled to counsel (725 ILCS 5/122 \u2014 2.1(a)(1) (West 2002)). However, the Turner court emphasized that counsel\u2019s duties are the same, whether the case is a death penalty case or not. Turner, 187 Ill. 2d at 413.\nEven if this were the standard, we would reach the same result in this case. Counsel\u2019s failure to properly address the timeliness issue was the immediate cause of, and thus directly contributed to, the petition\u2019s dismissal.\nAmendment has since modified the time limits for filing, but not the principle that a lack of culpable negligence is the only basis on which a court can excuse a late filing. See 725 ILCS 5/122 \u2014 1(c) (West 2004).\nPostconviction counsel need not, and should not, argue for wholly indefensible positions. In People v. Greer, 212 Ill. 2d 192, 205-09 (2004), the supreme court held that, where counsel is faced with an irredeemably merit-less petition, his or her duty is to withdraw. Greer, 212 Ill. 2d at 205-09. The same rule should apply to presenting a meritless defense against a motion to dismiss for untimeliness.", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "John C. Greenlees and Anna Ahronheim, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Ronald G. Matekaitis, State\u2019s Attorney, of Sycamore (Stephen E. Norris and Kendra S. Peterson, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAHMAL PERKINS, Defendant-Appellant.\nSecond District\nNo. 2\u201404\u20140127\nOpinion filed October 6, 2006.\nJohn C. Greenlees and Anna Ahronheim, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRonald G. Matekaitis, State\u2019s Attorney, of Sycamore (Stephen E. Norris and Kendra S. Peterson, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0895-01", "first_page_order": 913, "last_page_order": 926 }