People v. Holmes , 2024 IL App (5th) 230121-U ( 2024 )

2024 IL App (5th) 230121-UNOTICE
NOTICE
Decision filed 02/13/24. The
This order was filed under
text of this decision may be NO. 5-23-0121
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Macon County.
)
v. ) No. 97-CF-112
)
GREGORY L. HOLMES, ) Honorable
) Thomas E. Griffith,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court.
Justices Moore and McHaney concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in denying defendant leave to file a successive
postconviction petition where defendant did not satisfy the cause-and-prejudice test
and, in any event, the proposed petition did not allege any constitutional violation
occurring in this case, but raised arguments related to a separate but related case.
As any argument to the contrary would lack merit, we grant defendant’s appointed
counsel on appeal leave to withdraw and affirm the circuit court’s judgment.
¶2 Defendant, Gregory L. Holmes, appeals the circuit court’s order denying leave to file a
successive postconviction petition. His appointed appellate counsel, the Office of the State
Appellate Defender (OSAD), has concluded that there is no reasonably meritorious argument that
the circuit court erred. Accordingly, it has filed a motion to withdraw as counsel along with a
supporting memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified
defendant of its motion, and this court has provided him an opportunity to file a response, but he
1
has not done so. After considering the record on appeal and OSAD’s memorandum and supporting
brief, we agree that this appeal presents no reasonably meritorious issues. Thus, we grant OSAD
leave to withdraw and affirm the circuit court’s judgment.
¶3 BACKGROUND
¶4 Defendant pleaded guilty to burglary in case No. 97-CF-112 and was sentenced to 24
months’ probation. Shortly thereafter, he was charged in case No. 97-CF-1130 with numerous
offenses, including home invasion, armed robbery, and aggravated criminal sexual assault.
Following a jury trial, he was convicted of 14 offenses and sentenced to an aggregate 110 years in
prison. The court also revoked his probation in No. 97-CF-112 and sentenced him to five years’
imprisonment, to be served concurrently with his sentence in No. 97-CF-1130.
¶5 Defendant did not directly appeal in case No. 97-CF-112. He filed a postconviction petition
that included both case numbers in the caption. However, he made no arguments relating to 97-
CF-112. The court denied the petition following a second-stage hearing and the Fourth District
affirmed. People v. Holmes, No. 4-02-0811 (Aug. 19, 2003) (unpublished order under Illinois
Supreme Court Rule 23).
¶6 In 2022, defendant filed a motion for leave to file a successive postconviction petition.
Although the caption contained both case numbers, the only substantive arguments related to case
No. 97-CF-1130. In an order relating only to No. 97-CF-112 and included in the record for that
case, the circuit court denied leave to file. Defendant timely appealed.
¶7 ANALYSIS
¶8 OSAD contends that there is no reasonably meritorious argument that the circuit court erred
in denying defendant leave to file a successive postconviction petition in case No. 97-CF-112 for
2
the simple reason that the proposed petition did not include any allegations relating to or seek any
relief in that case. We agree.
¶9 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides
a mechanism by which a criminal defendant may assert that his conviction resulted from a
substantial denial of his constitutional rights. Id. § 122-1(a); People v. Delton, 227 Ill. 2d 247, 253
(2008). The Act contemplates the filing of only one postconviction petition and provides in section
122-3 (725 ILCS 5/122-3 (West 2020)) that “[a]ny claim of substantial denial of constitutional
rights not raised in the original or an amended petition is waived.” People v. Bailey, 2017 IL
121450, ¶ 15. To file a successive petition, a defendant must obtain leave of court, which may be
granted where the defendant demonstrates cause for his or her failure to bring the claim in his or
her initial postconviction proceedings and prejudice results from that failure. 725 ILCS 5/122-1(f)
(West 2020).
¶ 10 Defendant made no attempt to satisfy the cause and prejudice requirements for filing a
successive petition. Although he made no substantive arguments relating to No. 97-CF-112, given
that the court revoked his probation on the basis of the offenses of which he was convicted in No.
97-CF-1130, it is conceivable that reversing those convictions might require vacating his sentence
in No. 97-CF-112. 1 However, as we have also concluded that defendant’s most recent petition
provides no basis for reversing his convictions in No. 97-CF-1130 (People v. Holmes, 2024 IL
App (5th) 230122-U), there is no basis for disturbing his sentence in No. 97-CF-112.
1
The Illinois Department of Corrections website indicates that defendant has not completed his
sentence in No. 97-CF-112.
3
¶ 11 CONCLUSION
¶ 12 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
affirm the circuit court’s judgment.
¶ 13 Motion granted; judgment affirmed.
4