People v. Stewart , 2022 IL App (3d) 190580-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 190580-UOrder filed September 28, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-19-0580
v. ) Circuit No. 06-CF-359
)
JOE LEE STEWART, ) The Honorable
) Katherine S. Gorman,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court.
Justices Hauptman and Holdridge concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court erred when it allowed the State to participate at the cause-and-
prejudice stage of successive postconviction proceedings.
¶2 In 2006, the defendant, Joe Lee Stewart, was convicted of first degree murder and was
sentenced to 55 years of imprisonment. In 2019, the circuit court denied Stewart’s motion for
leave to file a successive postconviction petition, which, like his initial postconviction petition,
alleged that his trial counsel labored under a conflict of interest. On appeal, Stewart argues that
the court erred when it denied his motion for leave. We reverse and remand for further
proceedings.
¶3 I. BACKGROUND
¶4 Most of the facts pertinent to this appeal have been presented in previous appeals filed by
Stewart; in particular, People v. Stewart (Stewart III), 2018 IL App (3d) 160408.
¶5 In 2006, Stewart was found guilty of the first degree murder (720 ILCS 5/9-1(a)(1)
(West 2004)) of Leon Riley. At the time he shot and killed Riley on August 27, 2005, Stewart
was two months shy of his 21st birthday. Stewart was sentenced to a total of 55 years of
imprisonment—30 years on the first degree murder conviction plus 25 years for a firearm
enhancement.
¶6 On direct appeal, this court awarded Stewart additional credit toward his sentence for
time spent in presentence custody but otherwise affirmed his conviction and sentence. People v.
Stewart (Stewart I), No. 3-06-0874 (2008) (unpublished summary order under Illinois Supreme
Court Rule 23).
¶7 On September 8, 2008, Stewart filed a pro se postconviction petition alleging, inter alia,
that trial counsel, Mark Rose, labored under a conflict of interest because Rose had previously
represented Riley. The petition also alleged that Rose was ineffective for failing to disclose to
him the former representation of Riley, thereby depriving Stewart of the opportunity to waive his
right to conflict-free counsel. The circuit court summarily dismissed the petition as frivolous and
patently without merit, and this court affirmed the circuit court’s ruling on appeal. People v.
Stewart (Stewart II), 405 Ill. App. 3d 1216 (2010) (table) (unpublished order under Illinois
Supreme Court Rule 23). This court’s decision noted, inter alia, that Stewart had “failed to
attach any affidavits, records, or other evidence to support his allegations of conflict of interest”
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and that he had failed to include facts sufficient to “make clear the nature of the conflict of
interest he allege[d].” Id., slip order at 6.
¶8 On July 9, 2015, Stewart filed a pro se pleading entitled “Motion in Nature of Writ of
Error Coram Nobis.” The pleading alleged that relief was being sought under section 2-1401 of
the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)). The pleading also realleged the
conflict-of-interest argument that Stewart raised in his 2008 postconviction petition. This time,
Stewart included a document indicating that one of the attorneys representing Riley in a 2002
aggravated robbery case was “M. Rose.” Stewart further stated that he was able to secure the
document with the help of family members and that he “exercised due diligence in securing this
information/evidence as directed by the appellate court.”
¶9 Significant discussion was had in the circuit court about whether Stewart’s pleading was
actually a postconviction petition. The State ultimately filed a motion to dismiss the pleading,
which addressed it as a section 2-1401 petition. Stewart was allowed to file a pro se response,
even though the record does not indicate his public defender had withdrawn. Stewart’s response
argued that the conflict was a per se conflict and asked that the court construe the pleading as a
successive postconviction petition. Stewart also attached a “Motion for Leave to File Successive
Post-Conviction Petition Pursuant to 725 ILCS 5/122-1(f).” In that motion, Stewart argued that
he had cause for failing to bring the conflict-of-interest claim in his previous postconviction
petition because he was waiting on family members to assist him in obtaining the necessary
documentation of Rose’s prior representation of Riley. He also alleged that prejudice resulted
from his failure to bring the claim earlier because “the claim infected [his] judgment of
conviction.”
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¶ 10 In its order granting the State’s motion to dismiss, the circuit court repeatedly referred to
Stewart’s pleading as a postconviction petition. The court ruled that Stewart’s pleading was
untimely, barred by res judicata, and “fail[ed] to ‘clearly set forth the respects in which
petitioner’s constitutional rights were violated.’ ” The court’s order also stated that the ruling
was a final judgment under section 122-2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-2.1(a)(2) (West 2014)).
¶ 11 On appeal, this court held that the circuit court erred when it recharacterized Stewart’s
pleading as a postconviction petition without providing him the proper admonishments pursuant
to People v. Shellstrom, 216 Ill. 2d 45 (2005). Stewart III, 2018 IL App (3d) 160408, ¶ 16.
Accordingly, we vacated the circuit court’s judgment and remanded the case for the circuit court
to provide Shellstrom admonishments. Id. ¶ 22.
¶ 12 On February 13, 2019, before the case was addressed on remand, Stewart filed a motion
for leave to file a successive postconviction petition. In that motion, Stewart alleged that cause
existed for his failure to bring his conflict-of-interest claim earlier because (1) the supreme
court’s decision in People v. Hernandez, 231 Ill. 2d 134 (Sept. 18, 2008), changed the law
regarding per se conflicts of interest; (2) he had newly discovered evidence in the form of a
document showing Rose’s prior representation of Riley; (3) he was only able to obtain the
document with the assistance of his family; and (4) fundamental fairness precluded the
application of res judicata. Stewart further alleged that prejudice was presumed from a per se
conflict of interest.
¶ 13 The circuit court held a hearing on pending matters on April 5, 2019. After giving
Stewart the Shellstrom admonishments, the court asked whether Stewart intended to withdraw
his 2015 motion in favor of his February 2019 motion for leave to file a successive
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postconviction petition. It was determined that Stewart wanted to amend the 2015 motion so it
could be recharacterized as a successive postconviction petition. The prosecutor stated that “I
think we just need to set it over to give the State an opportunity to respond to whether he should
get leave.” The case was continued.
¶ 14 On April 18, 2019, Stewart filed another pro se motion for leave to file a successive
postconviction petition. That motion realleged the same cause-and-prejudice argument from his
February 2019 motion. Stewart also filed an amended postconviction petition, which detailed his
per se conflict-of-interest claim.
¶ 15 At a hearing on June 28, 2019, Stewart indicated that he wished to proceed on his April
2019 filing. The case was continued, and the State was given leave to file a response.
¶ 16 The State filed its response on September 20, 2019, the same day the circuit court held a
hearing on Stewart’s motion for leave. At the hearing, the court denied Stewart’s motion, ruling
that “this issue has been previously litigated in the first post-conviction petition and then again
during the appeal.”
¶ 17 Stewart appealed.
¶ 18 II. ANALYSIS
¶ 19 On appeal, Stewart argues that the circuit court erred when it denied his motion for leave
to file a successive postconviction petition. Specifically, he contends, inter alia, that the court
impermissibly allowed the State to participate at the cause-and-prejudice stage of successive
postconviction proceedings.
¶ 20 Section 122-1(f) of the Act states that a petitioner may file a successive postconviction
petition only if he or she obtains leave of court to do so. 725 ILCS 5/122-1(f) (West 2018).
“Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to
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bring the claim in his or her initial post-conviction proceedings and prejudice results from that
failure.” Id. We review a circuit court’s decision to deny leave of court to file a successive
postconviction petition de novo. People v. Lusby, 2020 IL 124046, ¶ 27.
¶ 21 In People v. Bailey, 2017 IL 121450, our supreme court addressed the question of
whether the State should be allowed to participate in the cause-and-prejudice determination of
successive postconviction proceedings. The Bailey court reasoned that
“Because the [circuit] court is capable of making an independent
determination on the legal question of whether adequate facts have been
alleged for a prima facie showing of cause and prejudice and because the
statute makes no provision for an evidentiary hearing and the petition,
itself, is not actually filed until leave has been granted by the court, we see
no reason for the State to be involved at the cause and prejudice stage.”
Id. ¶ 25.
The Bailey court also emphasized that it would be inequitable, fundamentally unfair, and
potentially violative of due process to allow the State to participate because (1) successive
postconviction petitions are usually filed pro se and (2) the Act does not provide for the
petitioner to receive representation by counsel unless the petition is docketed. Id. ¶ 27. For these
reasons, the Bailey court held that “the State should not be permitted to participate at the cause
and prejudice stage of successive postconviction proceedings.” Id. ¶ 24.
¶ 22 In this case, the circuit court allowed the State to participate at the cause-and-prejudice
stage by allowing it to file a response to Stewart’s pro se successive postconviction petition.
Doing so was error. Id.
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¶ 23 Regarding the remedy for such an error, our supreme court expounded on Bailey’s
holding in Lusby, 2020 IL 124046, in part by establishing that when the State has participated in
the cause-and-prejudice stage, a reviewing court has the discretion to (1) consider the defendant-
petitioner’s motion for leave on its merits in the interest of judicial economy or (2) remand the
case for the circuit court to conduct the independent determination. Id. ¶ 29 n.1. Notably, the
Lusby court did not indicate which remedy was preferable. See id.¶ 24 In part because “judicial economy” is an ill-defined notion, we choose to remand the
case. Further, we direct the circuit court to assign the case to another judge to ensure that a truly
independent determination of Stewart’s motion for leave can be made. People v. Smith, 2020 IL
App (3d) 170666, ¶ 11.
¶ 25 III. CONCLUSION
¶ 26 The judgment of the circuit court of Peoria County is reversed, and the cause is remanded
for further proceedings.
¶ 27 Reversed and remanded.
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