¶1concurring in part and dissenting in part:
¶2I agree with the majority that, despite the untimely filing of defendant’s postconviction petition, the consultation requirement of Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) was not met in this case and, therefore, that the cause must be remanded to the circuit court. However, I do not agree with the majority’s decision to address the issue of whether defendant’s delay in filing his postconviction petition was due to his culpable negligence.
¶3As the majority explains, the reason why counsel must fulfill the consultation requirement of Rule 651(c) in this case, and the reason this cause must be remanded to the circuit court, is because a challenge to the timeliness of a postconviction petition is an affirmative defense that may be waived by the State. See 215 Ill. 2d at 585 (“postconviction counsel must comply with Rule 651(c) and submit defendant’s substantive claims to the State to give the prosecutor an opportunity to determine whether they are sufficient to merit the State’s waiver of the affirmative defense of untimeliness”). However, since the State may elect upon remand to waive the untimeliness of defendant’s petition in this case (see People v. Boclair, 202 Ill. 2d 89, 101-02 (2002)), it is clearly premature for this court to be addressing the issue of whether defendant was culpably negligent in filing his petition. The remand proceedings have not yet occurred, defense counsel has not yet consulted with defendant or made further amendments to the postconviction petition, and the State has not yet chosen to invoke the affirmative defense of untimeliness. That being the case, that portion of the majority’s opinion which addresses the timeliness of defendant’s petition and whether defendant was culpably negligent is advisory. Advisory opinions are to be avoided. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 157 (2002). Unlike the majority, I would not address the question of whether defendant was culpably negligent and I express no opinion on that issue.
¶4CHIEF JUSTICE McMORROW joins in this partial concurrence and partial dissent.