NO. 4-01-0483

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

		Plaintiff-Appellee,			)	Circuit Court of

		v.						)	McLean County

CHARLES JENKINS,					)	No. 96CF142

		Defendant-Appellant.		)	

								)	Honorable

								)	Donald D. Bernardi,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE APPLETON delivered the opinion of the court:

		Defendant, Charles Jenkins, filed a petition for

postconviction relief pursuant to section 122-1 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/122-1 (West 2000)), often

referred to as the Post-Conviction Hearing Act (Act).  Upon

initial review, the trial court dismissed the petition as un

timely.  Defendant appeals, arguing that the trial court erred in

so finding.  We affirm.

	I. BACKGROUND

		On January 7, 1998, pursuant to a plea agreement,

defendant pleaded guilty to three counts of aggravated criminal

sexual assault (720 ILCS 5/12-14(b)(i1) (West 1996)), and the

trial court sentenced him to three concurrent 46-year prison

terms, one for each count.  Defendant moved to withdraw his

guilty plea and vacate the conviction.  See 145 Ill. 2d R.

604(d).  On December 7, 1998, the trial court denied the motion,

and defendant appealed.  We affirmed (People v. Jenkins, No. 4- 99-0025 (July 26, 2000) (unpublished order under Supreme Court Rule 23)), and defendant filed a petition for leave to appeal to the supreme court.  On October 4, 2000, the supreme court denied

defendant's petition for leave to appeal.  People v. Jenkins, 191 Ill. 2d 547, 738 N.E.2d 932 (2000) (table cite).

		On February 8, 2001, defendant filed his petition for

postconviction relief.  Sua sponte, the trial court dismissed the petition, without prejudice, on the ground that the petition was

untimely.  Noting that a defendant may file a late petition for

postconviction relief if the delay was not due to his or her

culpable negligence, the trial court, in its order of dismissal, 

allowed defendant 30 days "to file any factual allegations that

would indicate that the delay in filing this petition was not due

to his culpable negligence."  Defendant responded with a motion

to reconsider, alleging only that his petition for postconviction

relief was timely because he had filed it within six months after

the supreme court issued a mandate on its denial of his petition

for leave to appeal.  The trial court denied the motion to

reconsider.  This appeal followed.

	II. ANALYSIS

		Section 122-1(c) states:

			"No proceedings under this [a]rticle

shall be commenced more than 6 months after

the denial of a petition for leave to appeal

or the date for filing such a petition if

none is filed or more than 45 days after the

defendant files his or her brief in the ap

peal of the sentence before the Illinois Supreme Court (or more than 45 days after the

deadline for the filing of the defendant's

brief with the Illinois Supreme Court if no

brief is filed) or 3 years from the date of

conviction, whichever is sooner, unless the

petitioner alleges facts showing that the

delay was not due to his or her culpable

negligence."  725 ILCS 5/122-1(c) (West

2000).

		Thus, a defendant must file his or her petition for

postconviction relief by the earliest of the following three

deadlines:  (1) six months after "the denial of a petition for

leave to appeal" to the supreme court "or the date for filing

such a petition," (2) 45 days after the defendant files his or

her brief in an appeal before the supreme court (or 45 days after

the brief is due, if none is filed), or (3) three years after the

date of conviction.  725 ILCS 5/122-1(c) (West 2000).  If the

petition is untimely, the defendant must allege "facts showing

that the delay was not due to his or her culpable negligence." 

725 ILCS 5/122-1(c) (West 2000).

		Because the present case does not involve an appeal to

the supreme court, the 45-day period is inapplicable.  Therefore,

we must ascertain which of the remaining two periods expired

earlier:  the six-month period or the three-year period.  Defen

dant agrees that the six-month period ended on April 4, 20001 (six

months after the supreme court denied his petition for leave to

appeal on October 4, 2000).  Now we must count three years from "the date of conviction."  See 725 ILCS 5/122-1(c) (West 2000).  

		In People v. Woods, 193 Ill. 2d 483, 489, 739 N.E.2d 493, 496 (2000), the supreme court held that the words "date of

conviction," in section 122-1(c) of the Act, meant "the date that

final judgment[,] including sentence[,] was entered."  In the

present case, that date was January 7, 1998, when the trial court

adjudged defendant guilty and imposed the sentence.  That defen

dant filed a motion to withdraw his plea and vacate the sentence

did not make the judgment any the less final.  Supreme Court Rule

606(b) (188 Ill. 2d R. 606(b)) draws a distinction between a final judgment and the ruling on a motion directed against the

final judgment.  Three years after January 7, 1998, was January

7, 2001.  

		Defendant argues that the date of his conviction was

July 26, 2001, when we affirmed the trial court's judgment in on

direct appeal.  He also contends, elsewhere in his brief, that

"the date of conviction" was December 7, 1998, when the trial

court denied his motion to withdraw his guilty plea.  According

to defendant, we held, in People v. Ivy, 313 Ill. App. 3d 1011, 730 N.E.2d 628 (2000), "that the date of conviction begins

running from the date the appellate court affirms the convictions

and sentences on appeal."  He purports to derive that holding

from the following language in the decision: "This sentence was not final until the trial court denied defendant's amended motion

to reconsider sentence and that denial was affirmed on appeal." 

Ivy, 313 Ill. App. 3d at 1016, 730 N.E.2d at 634.  

		In Ivy, the initial appeal resulted in a remand, and after the reimposition of sentence, a second appeal.  The lan

guage redefining the term "conviction" to extend the date of

conviction to the resolution of any appeal was improvident at

best and contrary to both the definition the supreme court gave

to the term in Woods and the obvious intent of the legislature in the Act.

		This court in Ivy was faced with preserving a defen dant's rights under the Act when a lengthy appellate process had

extended beyond the statutory deadline for filing a petition.  We

recognized the need to provide for such an eventuality and said:

			"We are not prepared to require a defen

dant to file a postconviction petition while

the decision of this court on direct appeal

is pending in order to be within the three-

year limitations period from the original

imposition of sentence.  An otherwise dili

gent defendant should not be penalized in the

filing of a postconviction petition for the

length of time it takes his attorneys, the

State, and this court to process a direct

appeal."  Ivy, 313 Ill. App. 3d at 1016, 730 N.E.2d at 634-35.

		An "otherwise diligent defendant" is one who is not

culpably negligent.  The defendant in Ivy was not culpably negligent in filing his petition for postconviction relief during

the six-month period, because appellate proceedings were still

pending when the three-year period expired.  We said:  

		"Defendant exhausted his appellate remedies

prior to filing a postconviction petition. 

He did not sit back and do nothing after his

conviction while three years went by ***.  He

obtained a final determination on his amended

motion to reconsider sentence on October 28,

1996 [the date we affirmed], and filed his

postconviction petition within six months of

that date."  Ivy, 313 Ill. App. 3d at 1016, 730 N.E.2d at 634.  

		We, therefore, hold that the correct rationale of Ivy is as set forth above.  As the conceptual structure of the Act is

to provide additional process to a defendant after a resolution

of issues raised by the defendant on appeal, the failure to file

a petition for postconviction relief beyond the time provided by

the Act because the appellate process was not concluded can and

should be found to be delay not caused by a defendant's culpable

negligence.

		In the present case, the appellate proceedings con

cluded some four months before the three-year period expired. 

After the supreme court denied his petition for leave to appeal,

defendant did nothing for four months.  Unlike the defendant in

Ivy, defendant in the present case appears to have no valid excuse for missing the three-year deadline.

		Defendant contends that interpreting "the date of

conviction" as the date of sentencing could lead to an absurd

result.  He posits a hypothetical case in which the trial court granted a motion to withdraw a guilty plea and discovery thereaf

ter took more than three years.  If the initial sentence set the

three-year "clock" to ticking, the time for filing a petition for

postconviction relief would run before the defendant had a trial. 

We do not agree that under those circumstances the three years

would start running from the date of the original sentence. 

Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)) provides that

after allowing a motion to withdraw a guilty plea, the trial

court will "vacate the judgment."  One cannot logically petition

for relief from a vacated judgment.  When the supreme court held

that the "date of conviction" meant the date of the judgment, the

court meant a judgment in force.

		The judgment of January 7, 1998, remains in force.  The

three-year period expired on January 7, 2001.  The six-month

period expired on March 1, 2001.  The former period was the first

to expire, and therefore it was the governing period of limita

tion.  See 725 ILCS 5/122-1(c) (West 2000).  Section 122-1(c)

required defendant to file his petition for postconviction relief

no later than January 7, 2001.  Because he filed it on February 6, 2001, the petition was untimely, and he had to "make a 'sub

stantial showing'" that the untimeliness was not due to his

culpable negligence "by alleging facts supporting such a claim." 

See People v. Boclair, 312 Ill. App. 3d 346, 348, 726 N.E.2d 1166, 1169 (2000).  He failed to fulfill that pleading requirement,

although the trial court gave him an express opportunity to do

so.  He merely alleged his assumption--a mistaken assumption--

that the six-month period governed his case.  See People v. Van Hee, 305 Ill. App. 3d 333, 337, 712 N.E.2d 363, 367 (1999) (unfamiliarity with controlling period of limitations does not

show a lack of culpable negligence for purposes of section 122-

1(c)).

		Defendant next argues that the trial court erred in summarily deciding that his petition was untimely.  In defen

dant's view, the trial court should have confined itself to

deciding whether he had pleaded the gist of a constitutional

claim for relief.  According to defendant, the trial court could

not have found his petition untimely without making a finding of

fact, and findings of fact are forbidden at the preliminary stage

of the postconviction proceeding (see People v. Coleman, 183 Ill. 2d 366, 380-81, 701 N.E.2d 1063, 1071 (1998)).  

		Defendant must allege not only a constitutional viola

tion, but, if he filed the petition late, he also must allege

"facts showing that the delay was not due to his *** culpable

negligence."  See 725 ILCS 5/122-1(c) (West 2000).  When deciding, at

the initial stage, whether the petition is nonfrivolous, the

trial court can consider the information in its own files. 

People v. Alexander, 136 Ill. App. 3d 1047, 1052, 483 N.E.2d 1039, 1043 (1985).  If, in light of court documents, the petition

appears to be untimely, the defendant has the burden of pleading,

on pain of dismissal, a lack of culpable negligence.  In People v. Harden, 316 Ill. App. 3d 695, 697-98, 737 N.E.2d 306, 308 (2000), we held that "the trial court may dismiss a postconvic

tion petition as untimely during its initial review, at least

where *** the defendant has not alleged that the untimeliness is not due to his culpable negligence.  Furthermore, no motion by

the State is necessary."

		Although the trial court gave him ample opportunity,

defendant alleged no facts showing that the untimeliness of his

petition was not due to his own culpable negligence.  The trial

court did not err in dismissing the petition.  

	III. CONCLUSION

		For the foregoing reasons, we affirm the trial court's

judgment.

		Affirmed.

		KNECHT, J., concurs.

		COOK, j.J., dissents.

		JUSTICE COOK, dissenting:

		I respectfully dissent.

		I disagree that the date of conviction, the date that

final judgment was entered, is the same whether or not a

posttrial motion is filed.  A final judgment can be appealed, but

the timely filing of a posttrial motion prevents the appeal of a

judgment until the motion is resolved.  134 Ill. 2d R. 606(b). 

During the pendency of a posttrial motion, the judgment is

interlocutory; the trial court has complete power to vacate or

modify it during that time.  See People v. Talach, 114 Ill. App. 3d 813, 818, 448 N.E.2d 638, 642 (1983).  There is no final

judgment until the posttrial motion is resolved.