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2024 IL App (5th) 170438-U 

NO. 5-17-0438 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

Plaintiff-Appellee, ) Union County. 

 ) 

v. ) No. 07-CF-136 

 ) 

BRIAN W. RODGERS, ) Honorable 

 ) Charles C. Cavaness,

Defendant-Appellant. ) Judge, presiding. 

______________________________________________________________________________ 

JUSTICE McHANEY delivered the judgment of the court. 

Justices Welch and Moore concurred in the judgment. 

 

 ORDER

¶ 1 Held: The circuit court did not err in dismissing defendant’s postconviction petition where

defendant failed to establish he was not culpably negligent for the untimely filing

 of his petition. 

¶ 2 In August 2007, the defendant, Brian W. Rodgers, was indicted on one count of solicitation 

of murder for hire in violation of section 8-1.2(a) of the Criminal Code of 1961 (720 ILCS 5/8-

1.2(a) (West 2006)). Recorded conversations between the defendant and an informant for the 

sheriff’s department indicated the defendant intended to solicit the informant to procure a third 

person to commit the murder of the defendant’s uncle for the sum of $1000. Following a jury trial, 

the defendant was found guilty and subsequently sentenced to 20 years’ imprisonment. On direct 

appeal, the defendant’s conviction was affirmed. His petition for leave to appeal filed with the 

Illinois Supreme Court was denied. Following the appeal, the defendant filed a pro se petition for 

NOTICE

Decision filed 01/12/24. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.

NOTICE

This order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1).
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postconviction relief which was docketed for second-stage proceedings, and postconviction 

counsel was appointed. Postconviction counsel filed an amended postconviction petition which 

the circuit court dismissed as untimely. The defendant appeals the circuit court’s order dismissing 

his postconviction petition at the second stage. We affirm. 

¶ 3 I. Background 

¶ 4 On October 22, 2009, the jury returned a verdict finding the defendant guilty of solicitation 

of murder for hire. On March 19, 2010, the defendant was sentenced to 20 years’ imprisonment in 

the Illinois Department of Corrections and 3 years of mandatory supervised release. The defendant 

filed a direct appeal arguing that the circuit court erred (1) in denying his motion to vacate an order 

authorizing the State’s overhears of his meetings with a third party, (2) in denying his motion to 

suppress the recordings of the overhears, (3) in denying his request that the jury be instructed on 

the defense of entrapment, and (4) in denying his motion for a directed verdict. On direct appeal, 

this court affirmed the defendant’s conviction in a summary order dated June 10, 2011. No. 5-10-

0140 (2011) (unpublished order under Illinois Supreme Court Rule 23). On September 28, 2011, 

the defendant’s petition for leave to appeal to the Illinois Supreme Court was denied. See People 

v. Rodgers, 955 N.E.2d 478 (table) (Ill. 2011). The defendant did not file a petition for certiorari

to the United States Supreme Court.

¶ 5 On November 3, 2014, the defendant filed a pro se verified petition for postconviction 

relief arguing numerous claims of ineffective assistance of trial counsel and a claim of 

prosecutorial misconduct. On December 2, 2014, the circuit court found the postconviction petition 

presented the gist of a constitutional claim, docketed the matter for second stage proceedings, and 

appointed postconviction counsel to represent the defendant. On December 15, 2016, 

postconviction counsel filed an amended postconviction petition. The amended petition raised a 
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number of issues: timeliness of the petition, prosecutorial misconduct, ineffective assistance of 

counsel for (1) failure to properly advise the defendant of the entrapment defense, (2) failure to 

request a psychiatric examination, (3) failure to call witnesses, (4) failure to strike a particular 

juror; and (5) failure to properly prepare the defendant to testify at trial. Attached to the amended 

petition was the defendant’s affidavit; a mental health evaluation from the correctional facility 

dated March 24, 2010; a mental health diagnostic and treatment note from the correctional facility 

dated April 18, 2010; an affidavit from a potential witness stating that had he been called to testify 

at trial he would have testified to the defendant’s lack of intent to commit the alleged offense; and 

defense counsel’s Rule 651(c) certificate.

¶ 6 On March 21, 2017, the State filed a motion to dismiss defendant’s postconviction petition 

as untimely where the defendant had not alleged facts that supported a claim of lack of culpable 

negligence in the late filing of his petition. The State also maintained that the petition should be 

dismissed under the doctrine of res judicata and waiver where the defendant failed to raise the 

issues on direct appeal. On July 25, 2017, the defendant filed a response, arguing that the delay in 

filing his petition was not due to his culpable negligence where he relied on the advice of counsel 

who told him he had three years in which to file his postconviction petition; where he suffered 

from serious mental health issues and was housed in the psychological unit at the correctional 

facility; and where his access to legal materials, as well as his general level of mobility, was limited 

due to his confinement in the psychiatric unit. 

¶ 7 On October 26, 2017, the circuit court granted the State’s motion to dismiss the defendant’s 

petition for postconviction relief finding the petition untimely where the defendant failed to 

establish a lack of culpable negligence. On November 9, 2017, the defendant filed the instant 

appeal.
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¶ 8 II. Analysis 

¶ 9 The defendant argues on appeal that the circuit court erred in dismissing his postconviction 

petition as untimely, that he received ineffective assistance from his trial counsel, and that the State 

violated his due process rights by failing to disclose the criminal background of its chief witness. 

¶ 10 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides 

a statutory remedy to criminal defendants who assert claims for substantial violations of their 

constitutional rights at trial. People v. Edwards, 2012 IL 111711, ¶ 21. A postconviction 

proceeding “is not a substitute for, or an addendum to, direct appeal.” People v. Kokoraleis, 159 

Ill. 2d 325, 328 (1994). “The purpose of a post-conviction proceeding is to permit inquiry into 

constitutional issues involved in the original conviction and sentence that were not, nor could have 

been, adjudicated previously upon direct appeal.” People v. Peeples, 205 Ill. 2d 480, 510 (2002). 

The postconviction petition must “clearly set forth the respects in which petitioner’s constitutional 

rights were violated” and shall have attached thereto affidavits, records, or other evidence 

supporting its allegations or shall state why the same are not attached. 725 ILCS 5/122-2 (West 

2016). 

¶ 11 “The Act provides a three-stage mechanism for a defendant to advance such a claim.” 

People v. Addison, 2023 IL 127119, ¶ 18. “At the first stage, the trial court must independently 

review the petition within 90 days of its filing and determine whether it is frivolous or patently 

without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2016); Addison, 2023 IL 127119, ¶ 18. Thereafter, 

if the petition is not summarily dismissed, it must be set for further consideration in the second 

stage. 725 ILCS 5/122-2.1(b) (West 2016); Addison, 2023 IL 127119, ¶ 18. 

¶ 12 “The second stage of postconviction review tests the legal sufficiency of the petition.” 

(Internal quotation marks omitted.) People v. Dixon, 2018 IL App (3d) 150630, ¶ 12. The 
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petitioner bears the burden at the second stage of making a substantial showing of a constitutional 

violation. Id. The circuit court may only dismiss a postconviction petition at this stage if the 

allegations, liberally construed in favor of the defendant and taken as true, do not make a 

substantial showing of a constitutional violation. People v. James, 2023 IL App (1st) 192232, ¶ 33. 

“The purpose of the first two stages is to determine whether an evidentiary hearing is even 

necessary.” People v. Fields, 2020 IL App (1st) 151735, ¶ 42. A reviewing court applies a de novo

standard to a trial court’s dismissal of a postconviction petition at the second stage. Addison, 2023 

IL 127119, ¶ 17. 

¶ 13 A. Timeliness

¶ 14 The defendant concedes that his postconviction petition was not timely filed. Instead, the 

defendant asserts that he alleged sufficient facts in his petition and attached affidavit to establish 

that the delay in filing was not due to his culpable negligence for two reasons. First, he was 

suffering from “serious delusions” during a period of time while in prison. Second, he relied on 

his appellate counsel’s inaccurate advice as to the deadline for filing his postconviction petition. 

The circuit court found, and the defendant does not dispute, that while the deadline for filing his 

postconviction petition was July 31, 2012, he did not file his pro se petition until November 3, 

2014, over two years after the filing deadline. 

¶ 15 The timing requirement for filing a petition for postconviction relief is considered an 

affirmative defense that may be raised, waived, or forfeited by the State at a second stage 

proceeding. People v. Lander, 215 Ill. 2d 577, 584 (2005). An untimely petition for postconviction 

relief is subject to dismissal unless the defendant alleges sufficient facts to establish that the delay 

in filing was not due to his culpable negligence. 725 ILCS 5/122-1(c) (West 2016); People v. 

Stoecker, 384 Ill. App. 3d 289, 291 (2008). The defendant has the burden to prove his lack of 
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culpable negligence. Id. at 292. While culpable negligence may not be intentional, it involves a 

disregard of the likely consequences that flow from one’s actions. Id. Although the legislature did 

not define the term “culpable negligence” contained in section 122-1(c), the Illinois Supreme Court 

found that it “contemplates something greater than ordinary negligence and is akin to 

recklessness.” People v. Boclair, 202 Ill. 2d 89, 108 (2002). While the circuit court’s findings of 

fact regarding a defendant’s culpable negligence will be reversed only if they are manifestly 

erroneous, the ultimate conclusion of whether the established facts demonstrate culpable 

negligence is subject to a de novo review. Id. 

¶ 16 The defendant argues that the circuit court erred in finding him culpably negligent for his 

untimely petition despite facts alleged in his petition and attached affidavit that he suffered from 

“mental delusions.” In his petition, the defendant alleged that his struggles with various mental 

health issues predated his sentence to the Department of Corrections. When he arrived at prison, 

he was assigned to the psychiatric unit. The defendant alleged that while he was housed in the 

psychiatric unit, he did not believe he was “mentally stable enough to interact with other people.” 

In his petition he alleged that he was “not in his ‘right mind’ ” because the amounts and 

combinations of medications prescribed to him constantly changed, and the side effects of these 

various medications made it difficult for him to think logically and clearly. In support of this 

allegation, the defendant referenced his attached affidavit. However, review of the affidavit reveals 

no such statements regarding the effects of medication made by the defendant. Rather, the 

defendant’s only statement in his affidavit was that after his medication began to stabilize, he was 

assigned to group therapy where he had the opportunity to interact with others. 

¶ 17 The defendant also alleged in his petition that while in prison he was diagnosed with manic 

depression and schizophrenia with paranoid delusions. Attached to the petition were two mental 
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health records. One was the mental health intake evaluation conducted on March 23, 2010, signed 

by Rebecca Creason, MA, LPC. She noted that the defendant reported he had been treated for 

panic attacks, posttraumatic stress disorder, and schizophrenia. The defendant also reported that 

prior to being assigned to the unit he was taking the following medication for mental health and/or 

emotional issues: Paxil, Xanax, and Seroquel. Creason made two provisional diagnoses based on 

information provided by the defendant as well as her clinical observations: schizophrenia-paranoid 

type and posttraumatic stress disorder. Creason recommended participation in substance abuse 

counseling and a referral to a psychiatrist. She further recommended close supervision watch until 

the defendant was stable on his medications. 

¶ 18 The second record attached to the defendant’s petition was a mental health diagnostic and 

treatment note from his initial evaluation conducted on April 18, 2010. The objective data reveals 

that in the mental status exam the patient was alert and oriented to person, time, and place. It noted 

that the defendant “present[ed] as being delusional” and his thought processes were slightly 

disorganized. However, the defendant’s “[i]nsight and judgment appear[ed] to be adequate” at the 

time of the exam. Dr. Joy O. Urubusi, staff psychiatrist, diagnosed the defendant with a “psychotic 

disorder due to general medical condition” with a history of head trauma. Dr. Urubusi noted in the 

treatment plan that although the defendant presented with numerous symptoms, he had not

indicated past psychiatric treatment in the community until he was in jail. The doctor noted that 

the defendant reported a history of head trauma which “may have been consistent with developing 

symptoms thereafter.” Dr. Urubusi further noted that the defendant had reported that he was an 

alcoholic. The defendant was advised to seek a psychiatric referral if his symptoms were to worsen. 

Dr. Urubusi recommended supportive treatment and made some adjustments to the defendant’s 
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medications, with a follow-up appointment in two to three weeks. There were no additional mental 

health records attached to the petition. 

¶ 19 On appeal the defendant contends that the attached medical records indicating that he 

suffered from “serious mental health problems” and had “serious delusions” was evidence that in 

his mental state he did not have the ability to disregard the consequences likely to result from his 

delay in filing his petition. Contrary to his contention, the defendant fails to cite authority for the 

proposition that merely suffering from a mental health issue automatically establishes a lack of 

culpable negligence. It remains the defendant’s burden to allege sufficient facts in his petition to 

establish in what way his mental health issues or medications prevented him from filing a timely 

postconviction petition. Taking the defendant’s allegations as true, which we must, we find that 

the defendant did not meet his burden. 

¶ 20 In his affidavit the defendant next averred that, even if he had been in his right mind, while 

he was in the psychiatric unit he did not have access or the resources to pursue his postconviction 

relief efforts because of the “severe restrictions imposed on inmates housed in the [unit].” 

However, the defendant failed to allege in his affidavit the dates that he was confined to the 

psychiatric unit that would support a claim that he was not culpably negligent in the delay in filing 

the petition. Furthermore, although in his affidavit he alleged that while in the psychiatric unit he 

had no access to the law library, in his petition he alleged that he had “limited access to the prison’s 

law library.” 

¶ 21 Next, the defendant maintains that because he relied on his appellate counsel’s inaccurate 

advice that he had three years in which to file his petition, he was not culpably negligent for the 

untimeliness of his petition. He further maintains that he attached his affidavit to his postconviction 

petition averring the same. The defendant argues that his reliance on the inaccurate advice of 
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appellate counsel is similar to that in People v. Rissley, 206 Ill. 2d 403 (2003), and People v. 

Hobson, 386 Ill. App. 3d 221 (2008), wherein the defendants’ respective delays in filing their 

untimely postconviction petitions were found not to be the result of culpable negligence because 

the defendants relied on inaccurate advice of counsel as to when their petitions were due. Thus, 

the defendant urges for a similar result. 

¶ 22 In Rissley, the defendant filed a pro se petition for postconviction relief six days after the 

statutory period expired. Rissley, 206 Ill. 2d at 417-18. In the defendant’s amended petition, he 

alleged in part that his appellate counsel advised him he had three years from the date of sentencing 

to file a postconviction petition, and he attached an affidavit from appellate counsel which 

confirmed he gave the defendant this advice. Id. Our supreme court in Rissley found that “under 

the circumstances of this case” the defendant had established that the untimeliness of his petition 

was not due to his culpable negligence. Id. at 421. 

¶ 23 In Hobson, the defendant relied on his appellate counsel’s inaccurate advice when he filed 

his postconviction petition three to five months past the deadline. Hobson, 386 Ill. App. 3d at 231. 

Although he had not attached an affidavit from appellate counsel, the Hobson court held that the 

defendant had alleged enough facts to make a substantial showing that he was not culpably 

negligent for the late filing of his petition. Id. at 235. 

¶ 24 We do not read Rissley and Hobson as broadly as the defendant since both cases were 

decided on their specific facts. Rather, we read Rissley and Hobson to stand for the proposition 

that the untimely filing of a postconviction petition due to reasonable reliance on the inaccurate 

advice of counsel may be excused, not that it must be excused in every circumstance. In Lander, 

our state supreme court cautioned that a determination as to whether a defendant has established 

that a delay in filing his postconviction petition was not due to his culpable negligence “is fact-
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specific and is not amenable to an easily defined standard or rule. Rather, each case must be 

examined on its own facts.” Lander, 215 Ill. 2d at 589. 

¶ 25 The defendant next alleges that the circuit court erred when it dismissed his postconviction 

petition at the second stage of the proceedings. The defendant, citing People v. Wheeler, 392 Ill. 

App. 3d 303 (2009), argues that because he supported the allegations in the petition with his 

affidavit, the proceeding should have been moved to the third stage where the circuit court could 

assess the defendant’s credibility. We agree that a circuit court is foreclosed “ ‘from engaging in 

any fact finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this 

point in the proceeding.’ ” Id. at 308 (quoting People v. Coleman, 183 Ill. 2d 366, 380-81 (1998)). 

However, to the extent Wheeler suggests that a defendant who has filed an untimely postconviction 

petition is entitled to a third-stage evidentiary hearing solely based on the existence of “wellpleaded facts” in the petition without a determination as to the sufficiency of those facts, we 

respectfully disagree and turn to our state supreme court for guidance. 

¶ 26 In Lander, the defendant’s postconviction petition was dismissed as untimely at the second 

stage proceeding. 215 Ill. 2d at 582. Although the defendant in Lander conceded that his petition 

was filed outside the time limitation period of the Act, he argued that his petition alleged sufficient 

facts to show the delay was not due to his culpable negligence. Id. at 586. The Lander court, 

without reference to credibility determinations, found that the defendant’s reliance on advice of 

jailhouse lawyers, a law clerk, and a law librarian was not reasonable where there were no facts 

alleged to show these individuals had any specialized knowledge in postconviction matters. Id. at 

588. The supreme court concluded that the defendant’s reliance on such advice was insufficient to 

establish that the delay in filing his petition was not due to his culpable negligence. Id. at 589. 
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¶ 27 In a more recent Illinois supreme court case, People v. Johnson, 2017 IL 120310, ¶ 14, the 

defendant’s postconviction petition was dismissed by the circuit court as untimely at the second 

stage due to the defendant’s culpable negligence. Attached to the defendant’s petition was an 

affidavit from a fellow prison inmate identified as a “freelance paralegal” on whom the defendant 

relied on for assistance in filing his petition. In his affidavit, the “freelance paralegal” averred that 

the defendant had been unable to obtain the record from the law library until March 19, 2008, and 

after that, a series of prison lockdowns prevented the timely completion of the petition. Id. ¶ 4. 

Included with the affidavit was a memo from a prison counselor verifying that the prison had been 

on lockdown from March 25 through April 18, 2008, and that there had been one-day lockdowns 

on April 24 and May 15, 2008. Id. The Johnson court found, without reference to credibility 

determinations, that the defendant’s reliance on the “freelance paralegal” was insufficient to 

establish that the delay in filing the postconviction petition was not due to his culpable negligence. 

Id. ¶ 27. 

¶ 28 Similarly, here, we examine the facts alleged by the defendant to determine whether they 

are sufficient to establish that the delay in filing his petition was not due to his culpable negligence. 

725 ILCS 5/122-1(c) (West 2016); Stoecker, 384 Ill. App. 3d at 291. In his affidavit, the defendant 

averred that it was not until his condition began to improve and his medication began to stabilize 

that he was assigned to group therapy where he met other inmates who educated him on the legal 

aspects of his case, specifically with respect to any postconviction relief efforts. He also averred 

that after his condition stabilized after being in the special treatment center “for some time,” he 

spoke to his appellate counsel about what postconviction relief efforts had been made on his behalf 

and learned that a postconviction petition had not been filed on his behalf. The defendant failed to 

provide the relevant dates to establish when his condition began to improve or when his medication 
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began to stabilize or even when he first spoke to his appellate counsel that would support his 

contention that he was not culpably negligent for the delay. 

¶ 29 On appeal, the defendant contends that he alleged in his petition that his appellate counsel 

had advised him that he had “three years from the date the Illinois Supreme Court denied his PLA” 

to file his petition. After careful review of the record, however, we see no such statement made by 

the defendant in his affidavit. Instead, the record reveals that in both his petition and attached 

affidavit the defendant stated that he recalled his appellate counsel telling him that he had “three 

years from the conclusion of [his] case to file it.” The defendant also averred in his affidavit that 

during every prior communication he had with appellate counsel, counsel told him and/or his 

mother that “there was a three year deadline to file.” 

¶ 30 The defendant was convicted of solicitation of murder for hire on October 22, 2009. 

However, he did not file his postconviction petition until November 3, 2014, a little over five years 

after his conviction. Even if we were to accept that the defendant relied on his appellate counsel’s 

inaccurate advice that he had three years within which to file his petition, the defendant has alleged 

no facts sufficient to support the additional two-year delay in filing the petition. Thus, we find, 

under the facts presented here, the defendant has not met his burden to prove his lack of culpable 

negligence in the untimely filing of his postconviction petition. We further find that the trial court 

did not err in dismissing his petition at the second stage of the proceedings. Accordingly, because 

we find that the defendant untimely filed his postconviction petition, we need not address the 

merits of the defendant’s appeal.

¶ 31 III. Conclusion 

¶ 32 For the reasons set forth above, we affirm the circuit court’s judgment. 

¶ 33 Affirmed.