31 July 2000

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Len Burris, appeals the circuit court's order thatdismissed as untimely his postconviction petition. Defendantcontends that the petition demonstrates that the late filing wasnot due to his culpable negligence.

Defendant was convicted following a jury trial of unlawfulpossession of cannabis with intent to deliver (720 ILCS 550/5(d)(West 1998)) and unlawful production of cannabis sativa plants (720ILCS 550/8(b) (West 1998)). Lawrence Tankus represented defendantduring pretrial proceedings and at trial. On August 24, 1995, thecourt sentenced defendant to 24 months' probation.

The State filed a petition to revoke defendant's probation andapparently his probation was extended. On October 1, 1998, theState filed a second petition to revoke probation, alleging thatdefendant 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 theineffective assistance of counsel at trial.

The petition alleges that Tankus ineffectively presenteddefendant's motion to quash his arrest and suppress evidence, didnot thoroughly cross-examine a key prosecution witness, failed topresent evidence that would have corroborated defendant's testimonythat he did not reside at the apartment where the cannabis plantswere found, presented an ineffective and unprofessional closingargument, and failed to file a notice of appeal despite defendant'srequest that he do so. The petition acknowledges that it was notfiled within the three-year statute of limitations but alleges thatdefendant was not culpably negligent in failing to timely file. According to the petition, defendant had learned only two monthsbefore that Tankus was using heroin at the time of defendant'strial and conducted the trial under the influence of the drug. Attached to the petition is a report from the Attorney Registrationand Disciplinary Commission (ARDC) detailing Tankus's drug use andrecommending to the supreme court that he be disbarred.

After defendant filed his petition, the State withdrew itspetition to revoke probation and defendant's probation wasterminated. The State then moved to dismiss defendant's petition,contending that the court lacked jurisdiction because defendant wasno longer serving his sentence. At the hearing, however, the Stateargued only that the petition was not filed within the limitationsperiod and defendant's allegations did not establish that he wasnot culpably negligent. The trial court agreed and dismissed thepetition. The State argued, and the court held, that defendant wasaware of the substantive allegations comprising his ineffectiveassistance claim at the time of trial or shortly thereafter, andthe fact that Tankus's conduct was the result of heroin use wassimply irrelevant to whether he provided ineffective assistance. Therefore, the receipt of the ARDC report did not excuse the latefiling. Defendant filed a timely notice of appeal.

Defendant claims that he was not culpably negligent for filinghis petition late because he only learned of Tankus's heroin usageapproximately two months earlier when he received the ARDC report. In response, the State renews its argument that defendant knew atthe time of trial of Tankus's alleged deficiencies and the precisereason for Tankus's conduct is irrelevant. We agree.

The Post-Conviction Hearing Act provides that a petitionthereunder must be filed, at the latest, within three years fromthe date of conviction "unless the petitioner alleges facts showingthat the delay was not due to his or her culpable negligence." 725ILCS 5/122--1 (West 1998). The three-year filing period is astatute of limitations. People v. Wright, 189 Ill. 2d 1, 8 (1999).

Freedom from culpable negligence is very difficult toestablish. 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 prisonofficials (Perry, 293 Ill. App. 3d at 116) and the lack of accessto a law library because the prison was on lockdown (People v.Mitchell, 296 Ill. App. 3d 930, 933 (1998); People v. McClain, 292Ill. App. 3d 185, 188-89 (1997)) have been held not to excuse latefilings.

Here, defendant claims his late filing is excused because hedid not know until August 1998 that Tankus was under the influenceof heroin during defendant's trial. Quite simply, this fact doesnot form any part of defendant's claim. Defendant fails to cite toany provision of the constitution that guarantees him the right todrug-free counsel. Rather, the constitutional right defendantclaims was violated is the right to the effective assistance ofcounsel. The petition's allegations make it very clear thatdefendant knew in 1995 the facts that he now claims show thatTankus was ineffective.

A claim of ineffective assistance of counsel has two elements. A defendant must show that (1) his attorney's performance fellbelow an objective standard of reasonableness and (2) there is areasonable probability that, but for counsel's unprofessionalerrors, 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 ordrugs at the time of defendant's trial does not establish per seineffective assistance. See People v. White, 180 Ill. App. 3d 781,791 (1989) (allegation that counsel's breath smelled strongly ofalcohol during trial did not establish ineffective assistance inthe absence of prejudice).

Defendant's verified petition states:

"During the presentation of motions to quash, Tankus wasperforming under an obvious influence of heroin. *** Burrisand others in the courtroom noticed that Attorney Tankusstumbled and staggered as he walked and that his clothes wereextremely disheveled. His hair was messy and his face had achalky color to it."

The petition further alleges as follows:

"Although Burris noticed Attorney Tankus appeared to bein a drug-induced stupor, he did not perceive that the stuporwas caused by the continual use of heroin."

The petition further alleges as follows:

"Each morning Burris, who was twenty years old, had to pick upTankus at his home and drive him to court because, as Tankuscomplained, he felt faint and could not drive himself. Burris, and all jurors, noticed and were aware of Tankus'wrinkled and stained suit, his messy hair, and ghostlikefacial features. Furthermore, Tankus' speech was slurred andat times barely audible."

Finally, the petition alleges that Tankus failed to file anotice of appeal although defendant specifically instructed him toand gave him money to cover filing fees. Two months later, afterlearning from his probation officer that no notice of appeal hadbeen filed, defendant called Tankus and asked for an explanation. Tankus said that he had forgotten about filing the appeal but would"make things right." Several months later, defendant learned thatTankus had "totally abandoned him," not taking any further actionon the appeal. Tankus explained that he had "gotten lost" forseveral months after defendant's sentencing.

These allegations clearly show that defendant was aware whilethe trial was in progress that Tankus appeared disheveled, slurredhis speech, was unable even to drive himself to court, and appearedto be in "a drug-induced stupor." The only fact defendant learnedlater was that Tankus's "stupor" was caused specifically by heroin,as opposed to some other drug or a mental illness. Moreover,defendant was aware, at least within "a few months" of sentencing,that Tankus had failed to file a notice of appeal. Whether thatfailure occurred because, as defendant alleges, Tankus was on aheroin binge or because, as Tankus said, he simply forgot isirrelevant. Clearly, defendant could have proceeded with hisineffective-assistance claim without knowing the particularsubstance to which Tankus was addicted.

Even if the information in the ARDC report were somehowcritical to defendant's claim, the petition alleges that hereceived this information two months before the petition was filed,or early in August 1998. The report attached to the petition isdated May 27, 1998. Defendant was sentenced August 25, 1995. Thus, even after receiving the ARDC report, defendant had areasonable time to file his petition before the statute oflimitations expired. The petition appears to have been filed inresponse to the State's petition to revoke probation rather than onthe basis of anything in the ARDC report. The trial court did noterr in finding that defendant failed to establish his lack ofculpable negligence.

Defendant also appears to argue that the alleged violations ofhis rights are so egregious that we should simply disregard thestatute of limitations and consider them on the merits. A statuteof limitations is by definition an arbitrary period after which allclaims, including some meritorious ones, will be cut off. ChaseSecurities 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 theDepartment of Labor, 105 Ill. App. 3d 437, 441 (1982). However,the need to avoid stale claims and bring actions to trial beforethe witnesses' memories have faded and evidence becomes unavailablesometimes outweigh the rights of the party bringing the action. Golla v. General Motors Corp., 167 Ill. 2d 353, 370 (1995); TomOlesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet,Inc., 61 Ill. 2d 129, 132 (1975). A statute of limitationsmandating the dismissal only of actions that plainly lacked meritwould be pointless.

Defendant concedes that his petition was not filed within thethree-year statute of limitations. He cites no case holding thatthe limitations period may be disregarded if the allegations aresufficiently serious. In the absence of any such authority, we arenot free to disregard the plain language of the statute.

The judgment of the circuit court of Du Page County isaffirmed.

Affirmed.

INGLIS and RAPP, JJ., concur.