delivered the opinion of the court:
Defendant, Ronnie L. Davis, appeals the trial court’s second-stage dismissal of his petition, filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 2002)), in which he argued, inter alia, that his trial counsel was ineffective for failing to bring forward what he claims was potentially exculpatory testimony from a witness to the incident that led to defendant’s conviction. For the reasons that follow, we affirm.
I. BACKGROUND
Defendant was convicted of unlawful possession of a controlled substance and armed violence in connection with an incident in 1997, in which police entered a home in pursuit of a fleeing suspect and discovered defendant with drugs and a handgun in his possession. Defendant appealed, and this court affirmed his conviction, but remanded the cause for resentencing. People v. Davis, No. 2 — 97— 1096 (1999) (unpublished order under Supreme Court Rule 23). Defendant’s sentence was reduced on remand, and he again appealed. On appeal, this court affirmed his 24-year sentence for armed violence, but vacated the conviction of unlawful possession of a controlled substance. People v. Davis, No. 2 — 99—1247 (2001) (unpublished order under Supreme Court Rule 23). On October 2, 2002, our supreme court denied defendant’s subsequent petition for leave to appeal. People v. Davis,
On November 3, 2003, defendant petitioned pro se for postconviction relief under the Act. The trial court appointed counsel to represent defendant, and, on February 18, 2005, counsel filed supplements to the petition. The supplemented petition alleged, among other things, that defendant had been deprived of his right to effective assistance of counsel by his trial counsel’s failure to interview, or call to testify, a witness who would have offered testimony that aided his case. Defendant knew of the witness’s presence at the scene, but he did not obtain her affidavit until February 2005.
The affidavit stated, in pertinent part:
“I *** state that myself and [defendant] were at my grandmother’s house ***. Sometime during that time in the afternoon the police arrived at my grandmother[’]s house and proceeded inside very quickly and saying [sic] that someone that they were chasing ran into our house. *** We told them no one had ran [sic] into our house and asked them to leave. They then turned they’re [sic] attention to [defendant] and asked him to take his hands out of his pocket [sic][.] We asked them to leave once more and they continued to tell [defendant] to take his hands out of his pocket [sic][.] [H]e wouldn’t and they immediately restrained him, and hit him then arresting [sic] him and taking [sic] him away. Before they took him there was a *** silver gun on the floor of the kitchen[.] I picked it up, the police grabbed me and my arm and took the gun away from me. I then told them I was picking it up for everyone[’]s safety and I never saw that gun again. I can verify that [defendant] had never left the house since we arrived two or three hours earlier. No one ever contacted me for a statement and I was never called to testify during [defendant’s] trial. I never saw [defendant] with the gun. I don’t know where the gun came from and I had never seen it before.”
Defendant’s original petition asserted that any delay in filing the petition was not due to his culpable negligence, because defendant had only recently learned that no charges were filed against the suspect whom police pursued into the house where they encountered defendant.
The State moved to dismiss defendant’s postconviction petition on the grounds that the petition was untimely, that it made no substantial showing of a constitutional violation, that the allegations in the petition had been waived for failure to raise them in the direct appeal of defendant’s conviction, and that the petition did not properly cite the Act. Defendant’s reply to the State’s motion to dismiss argued that the delay in his filing his postconviction petition was not due to his culpable negligence, because the prison library had been closed during the relevant time period. Defendant filed an affidavit saying that he had no access to the library for the first year of his incarceration; however, the State responded with an affidavit from a prison librarian refuting this claim.
On October 27, 2005, the trial court held a hearing on the State’s motion to dismiss. At the hearing, defendant testified on his own behalf. He explained that he did not file his petition within the time limit under the Act because he “thought that [he] had three years to file,” and he noted that he did not have legal counsel at the time. At the conclusion of defendant’s testimony, the court heard arguments from both sides. The State argued that the petition was untimely, that it failed to make a substantial showing of a constitutional violation, and that defendant’s arguments were barred by waiver. Defense counsel responded to the timeliness argument by conceding that defendant’s petition was not timely, but asked the trial court to allow the petition to proceed “based on the nature of the petition and in the interest of justice.”
The trial court granted the State’s motion to dismiss defendant’s postconviction petition. It stated in open court that, “after considering [the] State’s argument, the Court would find [the State’s motion to dismiss] to be valid in two respects, and, that is, certainly that the petition is time barred.” The trial court continued:
“Even with the amendment that was made it does not get beyond the Defendant’s culpable negligence. The fact that he’s alleging here today that he thought that it was three years after that he had is not an excuse to get beyond that culpable negligence so it was not timely filed.”
The trial court also agreed with the State that defendant’s argument concerning the new witness had been waived for failure to assert it on direct appeal.
In its written order, the trial court stated that the petition was “untimely filed due to [defendant’s] own culpable negligence and barred by doctrine [sic] of waiver.” Defendant timely appealed.
II. APPELLATE DEFENDER’S ADVOCACY
Initially, we address the quality of representation provided defendant in this appeal because, in this and another recent case, People v. Teran,
Defendant’s appointed attorney for this appeal, Jay Wiegman of the Third District Office of the State Appellate Defender, filed a Finley motion because he could not identify any nonfrivolous issues to raise on appeal. In his motion, Wiegman asserted that defendant’s postconviction petition was untimely and that there was no viable excuse for the delay. The motion discussed only the timeliness issue.
We denied Wiegman’s motion to withdraw and directed him to file a brief addressing postconviction counsel’s assistance. Wiegman subsequently filed a motion to reconsider our denial of his motion for leave to withdraw. In that motion and an accompanying memorandum, Wiegman argued that postconviction counsel did not provide unreasonable assistance under the Act or Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). Specifically, Wiegman noted that postconviction counsel based his timeliness argument on defendant’s mistake of law only after the State had refuted defendant’s contention that he had no library access. Wiegman also rebutted the contention that postconviction counsel should have argued that the witness affidavit could have been considered newly discovered evidence. He noted that such argument was unnecessary and, in any event, “the trial court disregarded any timeliness concerns involving this issue, finding instead that [defendant’s claim] was waived.” Wiegman also asserted that postconviction counsel did not violate Rule 651(c) or the Act by failing to argue that counsel on direct appeal was ineffective for not raising an argument regarding the new witness. Instead, Wiegman argued that counsel on direct appeal could not have argued the new-witness issue, because the record on appeal did not reveal that issue, and, therefore, counsel on direct appeal could not be considered ineffective.
We denied Wiegman’s motion to reconsider. We noted that, if “counsel on direct appeal could not have raised the supplemental claim, the trial court erred in dismissing that claim on the basis of waiver.” We thus ordered Wiegman “to file a brief addressing whether, at least as to defendant’s [argument regarding the new witness,] the trial court erred in dismissing defendant’s petition.” Wiegman subsequently filed an appellate brief, the State responded, and Wiegman replied.
Initially, the lone argument Wiegman presented on appeal was his argument that the trial court erred in ruling that defendant’s claim regarding the new witness was barred by the doctrine of waiver. Once Wiegman briefed the issue of waiver, the State readily conceded the point because the evidentiary basis for defendant’s claim was not contained in the record on direct appeal and, thus, could not have been raised on appeal. See People v. Jones,
Though the State conceded that waiver was an inappropriate basis for dismissing defendant’s petition, it raised two additional arguments to support the trial court’s decision. First, the State argued that defendant’s postconviction petition did not make the necessary showing of a constitutional violation, because the new witness’s proposed testimony would not have changed the outcome of the trial (or the pretrial motion to suppress). See People v. Whitfield,
These arguments were patently at odds with the record. We quoted the trial court’s ruling above; that ruling could not more plainly invoke untimeliness due to culpable negligence as a bar to defendant’s post-conviction petition. Further, the ruling makes no distinction between the new-witness issue, which was added via postconviction counsel’s supplement to the pro se petition, and the remainder of the petition. Indeed, neither the State nor postconviction defense counsel, nor the trial court for that matter, drew any distinction for timeliness purposes between the new-witness claim and defendant’s other claims. Further, even if it were true that the trial court disregarded the timeliness issue, we would still consider it because we may affirm the trial court’s dismissal of a petition on any basis shown by the record, even if that basis was rejected by the trial court. People v. Ramirez,
Accordingly, after initial briefing, the quality of Wiegman’s representation in this matter left us with grave concerns as to whether defendant had received a fair and meaningful appeal. For example, Wiegman overlooked nonfrivolous arguments when he filed his initial motion to withdraw. In addition, after we denied his motion to withdraw, Wiegman filed a motion to reconsider, not asserting that we made a mistake of law, but, instead, refuting the issues we raised for him in our denial. Further, the motion to reconsider inexplicably overlooked an obvious problem with the trial court’s waiver holding. Wiegman’s actual briefing ignored substantial arguments made by the State. Wiegman’s brief, and his motion to reconsider, contained the spurious assertion that timeliness was not an issue when the trial court dismissed defendant’s petition, even though that assertion ostensibly hurt defendant’s case.
What strikes us most about this last mistake is that Wiegman made his assertion as part of an argument against his client. The very rationale for motions to withdraw is that attorneys must not be forced to choose between two ethical duties — their duty to zealously advocate for their clients, and their duty of candor to the court — when those duties conflict. See Anders v. California,
Here, Wiegman made inconsistent and inaccurate statements that were against his client’s interests in an attempt to be discharged from defendant’s case. The fact that Wiegman interpreted the trial court’s ruling as he did, when an opposite interpretation was almost unavoidable, gives us the impression that his pursuit was not vindication of his client’s interests but, rather, vindication of his interest to be discharged from the case (and, consequently, to have the judgment affirmed). His failure to spot the obvious exception to the waiver rule leaves us with similar doubts. Moreover, Wiegman’s failure to respond in his initial reply brief to the State’s alternative argument for affirmance — its assertion that defendant’s petition does not establish a constitutional deprivation — further reflects Wiegman’s disinterest in zealously pursuing defendant’s interests here. Even if the State’s argument were correct, Wiegman at no point indicated to us that opposition to the argument would be frivolous or that he had even considered the argument.
Thus, because questions remained after Wiegman’s briefing, regarding arguments that he never raised, we ordered Wiegman to address whether postconviction counsel violated Rule 651(c) by failing to avoid waiver and by offering what amounted to an ineffective “mistake of law” excuse for untimeliness when there appeared to be a more feasible argument of newly discovered evidence. We also convened oral argument so that we could fully air our concerns to the parties. After oral argument, we granted defendant leave to file a supplemental brief and the State leave to respond. Both briefs were filed, but Wiegman did not file, or request leave to file, a reply brief, even though the State’s brief raised arguments not addressed in Wiegman’s supplemental brief. We nevertheless sua sponte granted Wiegman leave to file a reply brief, and he did so.
After reviewing the supplemental briefs, we are now satisfied that defendant has received reasonable assistance from appellate counsel. However, the events here prompt us to observe that all parties in every action have a right to a fair appeal, and it is fundamental to our adversarial process that those appeals be decided with the advice of zealous advocates of both positions. An appellate defense counsel is charged with one principal object: ensuring that the defendant receives a fair appeal. It is only in the most dire circumstances, and with considerable regret, that an appointed attorney should ask to withdraw his or her representation by filing a memorandum outlining the weakness of a client’s case. An attorney who files a Finley or Anders motion without exploring every conceivable argument for a defendant, including nonfrivolous arguments even with little chance of success, disappoints not only the defendant, but also the justice system as a whole.
Counsel’s actions here, combined with the actions of another Third District appellate defender in Teran, have raised concerns regarding the quality of representation from that office. We therefore take this opportunity to encourage both bench and bar to exercise diligence to ensure that all parties receive the fairest possible appeals. We also caution that we view Anders and Finley motions as decisions of last resort for defense counsel who cannot, in good faith, represent their clients. Any notion that such a motion has been filed with an eye more toward personal expedience than good faith will be met with disfavor.
III. THE MERITS OF THIS APPEAL
Now that we have received full briefing in this case and had an opportunity to review the briefs submitted, we are satisfied that defendant has, in the end, received representation sufficient to provide him a fair appeal. We therefore consider his appeal on its merits.
On appeal, defendant argues that the trial court erred in dismissing his supplemental claim on the basis of waiver and that postconviction counsel violated Rule 651(c) by failing to provide a reasonable level of assistance.
A. Waiver
The Act provides a remedy for defendants who have suffered a substantial violation of their constitutional rights at trial. People v. Edwards,
If the petition survives the first stage, the defendant moves on to the second stage under the Act, at which the defendant may be appointed counsel. Greer,
One basis for the trial court’s second-stage dismissal of defendant’s petition was its conclusion that defendant had waived the issues raised in his petition for failure to raise them on direct appeal. However, defendant notes, and the State concedes, that, since the evidentiary basis for defendant’s new-witness claim was not contained in the record on direct appeal, the claim could not have been raised on appeal and, thus, the waiver finding was improper. See Jones,
Though the State concedes that waiver was an inappropriate basis for dismissing defendant’s petition, it raises two additional arguments to support the trial court’s decision. We may affirm the trial court’s dismissal of a petition on any basis shown by the record, even if that basis was rejected by the trial court. Ramirez,
First, the State argues that defendant’s petition does not make the substantial showing of a constitutional violation necessary to sustain a postconviction claim. See Whitfield,
Second, the State argues that the trial court properly dismissed defendant’s petition as untimely under the Act. Section 122 — 1(c) of the Act provides that no postconviction petition may be filed more than six months after the denial of a petition for leave to appeal, or three 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 2002). “The phrase ‘culpable negligence’ contemplates something greater than ordinary negligence and is akin to recklessness. [Citations.] A trial court’s findings of fact regarding whether a petition’s untimeliness was due to culpable negligence will not be reversed unless manifestly erroneous [citation], but [a challenge to] the trial court’s ultimate conclusion as to whether the established facts demonstrate culpable negligence is reviewed de novo.” Ramirez,
In summary, based on the above, we accept both of the State’s alternative bases for upholding the trial court’s dismissal of defendant’s postconviction petition. Therefore, though defendant is correct that the trial court erred in invoking waiver as a bar to defendant’s claim, we agree with the State that we may not reverse the trial court’s decision on that basis.
B. Reasonable Level of Assistance
Defendant’s second argument on appeal is that we must reverse because he did not receive the level of assistance mandated by Rule 651(c) and the Act for postconviction counsel. A defendant’s right to counsel after the first stage of postconviction proceedings is purely statutory rather than constitutional, and, under the Act, a defendant is entitled only to a “reasonable” level of assistance. Greer,
In order to adequately present a defendant’s postconviction claims and, thus, provide the requisite level of assistance, postconviction counsel must “amend an untimely pro se petition to allege any available facts necessary to establish that the delay was not due to the petitioner’s culpable negligence.” People v. Perkins,
Here, as noted, defendant’s postconviction petition was not timely filed. Postconviction counsel amended defendant’s petition to allege that his prison library had been closed and, thus, that his failure to timely file his postconviction petition was not due to his culpable negligence. The State responded with an affidavit from a prison official indicating that the library had not, in fact, been closed. Postconviction counsel did not further amend the petition, but, instead, elicited new testimony from defendant at the hearing on the State’s motion to dismiss. At the hearing, defendant testified that he misunderstood the statutory deadline for his petition. We consider this testimony an additional amendment to defendant’s postconviction petition to be governed by Rule 651(c), even though postconviction counsel did not submit the amendment in written form.
On appeal, defendant argues that postconviction counsel did not provide reasonable assistance, because he made the above arguments to overcome the untimeliness of defendant’s petition when he could have made a potentially stronger argument. Defendant notes that the mistake-of-law defense proffered by postconviction counsel has been rejected by this court (see People v. Hampton,
Defendant is correct that newly discovered evidence of innocence may excuse a defendant’s failure to timely file a postconviction petition. See People v. Morgan,
First, the State notes that “evidence is not ‘newly discovered’ when it presents facts already known to the defendant at or prior to trial, though the source of those facts may have been unknown, unavailable, or uncooperative.” People v. Barnslater,
Second, the State argues that, even if the affidavit were “newly discovered,” it was not evidence that was material to defendant’s case. Defendant does not challenge the State’s assertion that materiality is a requirement for newly discovered evidence to excuse a late filing. The affidavit asserts, in pertinent part, that police entered the home without permission, that defendant failed to comply with police orders to remove his hands from his pockets, and that a handgun appeared on the floor after police physically confronted defendant. As the State notes, the alleged fact that police entered without permission was immaterial because the trial court held that, even if police did not have permission to enter the house, they could have entered it because they were in hot pursuit of a fleeing suspect. The State further notes that the remainder of the affidavit does not contradict, but actually corroborates, police testimony that defendant had his hands in his pockets and that there was a gun. Defendant’s only response to these arguments on appeal is that the affidavit must be material because it contradicts the testimony of the State’s witnesses. However, defendant offers no point on which the affidavit and the testimony conflict. Thus, he concedes the point. In sum, we agree with the State that the affidavit cannot be considered newly discovered evidence that excuses defendant’s untimely filing of his petition, both because the affidavit was not “newly discovered” and because its contents were not material.
However, the question presented here is not whether postconviction counsel could have presented an alternative argument that would have succeeded. Indeed, a defendant need not demonstrate prejudice in order to succeed on a claim that postconviction counsel violated Rule 651(c). People v. Lander,
Though postconviction counsel overlooked the above argument, he nevertheless made substantive amendments to defendant’s petition in an effort to ensure that his claims would be adequately presented. Defendant’s initial petition alleged that his delay in filing was caused by the fact that he had only recently received information regarding a witness’s arrest record. However, the documents attached to his petition refuted this claim. Postconviction counsel amended defendant’s petition to add the assertion (supported by defendant’s affidavit) that he did not have access to the prison library in order to work on his petition. This was a potentially viable argument. See People v. Cortez,
For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.
Affirmed.
McLAREN and O’MALLEY, JJ., concur.