People v. Shaw ( 2021 )

NOTICE FILED
This Order was filed under 2021 IL App (4th) 190205-U June 24, 2021
Supreme Court Rule 23 and Carla Bender
is not precedent except in the NO. 4-19-0205 4th District Appellate
limited circumstances Court, IL
allowed under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Coles County
TIMOTHY SHAW JR., ) No. 09CF117
Defendant-Appellant. )
) Honorable
) James R. Glenn,
) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court.
Justices Cavanagh and Holder White concurred in the judgment.
ORDER
¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to
withdraw as appellate counsel and affirmed the trial court’s judgment as no
meritorious issue could be raised on appeal.
¶2 Defendant, Timothy Shaw Jr., appeals from the trial court’s dismissal of his
successive postconviction petition and motion for a new trial. On appeal, the Office of the State
Appellate Defender (OSAD) moves to withdraw as appellate counsel on the grounds no
meritorious issue can be raised on appeal. Defendant has not filed a response to OSAD’s motion.
We grant OSAD’s motion and affirm the trial court’s judgment.
¶3 I. BACKGROUND
¶4 On direct appeal, this court previously set forth all of the relevant facts involved
in this case. We reiterate only the facts necessary in reaching our decision below.
¶5 A. Stipulated Bench Trial and Direct Appeal
¶6 In February 2009, the State charged defendant with two counts of predatory
criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)), alleging defendant
placed his finger in the sex organ of M.C. (count I) and placed his mouth on the sex organ of
K.C. (count II).
¶7 In August 2011, a stipulated bench trial was held. The trial court found defendant
guilty but mentally ill of count I and, upon the State’s request, dismissed count II. In October
2011, the court sentenced defendant to 28 years’ imprisonment followed by 12 years’ mandatory
supervised release. On direct appeal, this court affirmed defendant’s conviction. See People v.
Shaw, 2014 IL App (4th) 120910-U.
¶8 B. Relevant Postconviction Proceedings
¶9 In July 2014, defendant filed a pro se petition seeking postconviction relief under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). Defendant
asserted “[t]he detective from M.P.D. lied during the preliminary hearing and in his cross exam.”
Defendant alleged claims of actual innocence and ineffective assistance of his trial counsel.
Defendant further alleged he never received his Miranda warnings (see Miranda v. Arizona, 384
U.S. 436 (1966)) and denied giving a confession to police. In August 2014, the trial court denied
defendant’s petition as frivolous and patently without merit. Defendant did not appeal the denial
of his petition.
¶ 10 In May 2015, defendant filed a pro se motion for leave to file a successive
postconviction petition, claiming a violation of his due process rights where his taped confession
showed the evidence had been altered to make him look guilty. The trial court subsequently
denied defendant’s motion, finding the motion “fail[ed] to satisfy the cause and prejudice test as
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required by 725 ILCS 5/122-1(f).” Defendant appealed. This court vacated certain fees and
assessments imposed by the circuit clerk and otherwise affirmed the court’s judgment. See
People v. Shaw, 2017 IL App (4th) 150484-U.
¶ 11 In June 2016, defendant filed a second pro se postconviction petition alleging he
“was denied his right to the effective assistance of trial counsel *** where his attorney failed to
interview and call as witnesses 2 people who could have corroborated defendant[’]s alibi.” The
trial court entered a written order denying defendant’s pro se postconviction petition, finding
defendant “failed to request leave of court to file the petition *** and is not in compliance with
the requirements of 725 ILCS 5/122-1(f).” Defendant did not appeal the court’s judgment.
¶ 12 In August 2016, defendant filed a pro se motion for leave to file a successive
postconviction petition alleging actual innocence. Defendant also asserted he demonstrated both
cause and prejudice and further asserted a violation of his due process rights, realleging his
ineffective assistance claim based on trial counsel’s failure to call two witnesses who would have
corroborated defendant’s alibi.
¶ 13 In October 2016, the trial court denied defendant’s motion for leave to file a
successive postconviction petition, finding defendant failed to raise any new issues and failed to
meet the standard set forth in People v. Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d 609 (2002).
Defendant did not appeal from the court’s denial of his motion.
¶ 14 C. The Instant Postconviction Petition
¶ 15 On March 15, 2019, defendant filed a successive pro se postconviction petition,
the subject of the instant appeal. Defendant did not file an accompanying motion requesting
leave to file a successive postconviction petition. In the petition, defendant argued review of his
conviction and sentence was necessary, asserting, inter alia, (1) his real name was “Timmy Shaw
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Jr.” and Timothy N. Shaw Jr. was an imposter and sex offender, (2) M.C.’s father was the actual
perpetrator of the sexual assault against her, (3) ineffective assistance of trial counsel where
counsel coerced defendant into retracting a statement he knew would show guilt and refused to
allow defendant to testify on his own behalf, (4) ineffective assistance of trial counsel where
counsel failed to challenge David Vanderport’s perjured testimony at defendant’s preliminary
hearing, (5) the victim’s videotaped interview was inadmissible as medical testimony because it
was not made for medical purposes, and (6) he was innocent because “nothing has been prove[n]
and the world is a safer place with a real cop around.”
¶ 16 On March 18, 2019, the trial court entered a written order dismissing defendant’s
pro se postconviction petition as “frivolous or patently without merit, having no arguable basis
either in law or in fact.” The court found the petition “fail[ed] to demonstrate cause for
Defendant’s failure to bring the claims in his initial post-conviction proceedings or prejudice
resulting from that failure” and further found “[t]he issues of said Petition could have been raised
on direct appeal, but were not.”
¶ 17 D. Defendant’s Motion for New Trial
¶ 18 On April 3, 2019, defendant filed a motion for new trial “based on newly
discovered evidence.” Citing People v. Ortiz, 235 Ill. 2d 319, 919 N.E.2d 941 (2009), defendant
asserted he was entitled to a new trial “if their [sic] was an error in [his] trial which their [sic]
was.” Defendant alleged (1) social worker Ann Drake failed to present any deoxyribonucleic
acid (DNA) evidence and was not a doctor, (2) trial counsel was aware Drake was not a doctor
but failed to raise the issue at trial, and (3) trial counsel knew defendant’s actual name was
“Timmy Shaw Jr.” Defendant further asserted his Miranda rights were violated where authorities
continued questioning him following his request for an attorney.
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¶ 19 That same day, the trial court entered a docket entry denying defendant’s motion,
which stated:
“Court lacks jurisdiction to address the (Motion for) New Trial Based on
Newly Discovered Evidence ***. If the motion is intended to be another
post-conviction petition, Defendant failed to seek leave of court. The motion fails
to demonstrate cause for Defendant’s failure to bring the claims in his initial
post-conviction proceedings or prejudice resulting from that failure. The issues of
the motion could have been raised on direct appeal, but were not.”
¶ 20 On April 12, 2019, OSAD, appointed counsel for defendant on appeal, filed an
amended notice of appeal from the trial court’s orders dismissing defendant’s successive
postconviction petition and motion for a new trial.
¶ 21 On November 13, 2020, OSAD filed a motion for leave to withdraw as
defendant’s counsel and attached a supporting memorandum of law citing People v. Greer, 212
Ill. 2d 192, 817 N.E.2d 511 (2004), People v. Lee, 251 Ill. App. 3d 63, 621 N.E.2d 287 (1993),
and People v. White, 2020 IL App (4th) 160793, 153 N.E.3d 1084.
¶ 22 II. ANALYSIS
¶ 23 On appeal, OSAD asserts no colorable argument can be made the trial court erred
in denying defendant’s successive postconviction petition—filed March 15, 2019—and
subsequent motion for new trial. We agree.
¶ 24 The Act “provides a mechanism for criminal defendants to challenge their
convictions or sentences based on a substantial violation of their rights under the federal or state
constitutions.” People v. Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010). The Act
contemplates the filing of only a single postconviction petition, and any claim not raised in the
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original postconviction petition is deemed forfeited. People v. Holman, 2017 IL 120655, ¶ 25, 91
N.E.3d 849. To obtain leave to file a successive postconviction petition, a defendant must either
(1) show cause and prejudice for the failure to raise a claim in his or her earlier petition or (2) set
forth a colorable claim of actual innocence. Id. ¶ 26.
¶ 25 Under the cause-and-prejudice test, a defendant demonstrates cause by identifying
“an objective factor that impeded his or her ability to raise a specific claim during his or her
initial post-conviction proceedings[.]” 725 ILCS 5/122-1(f)(1) (West 2018). A defendant
demonstrates prejudice by showing the “claim not raised during his or her initial post-conviction
proceedings so infected the trial that the resulting conviction or sentence violated due process.”
725 ILCS 5/122-1(f)(2) (West 2018). To support a claim of actual innocence, “the evidence in
support of the claim must be ‘newly discovered’; material and not merely cumulative; and of
such conclusive character that it would probably change the result on retrial.” People v.
Edwards, 2012 IL 111711, ¶ 32, 969 N.E.2d 829. “Newly discovered evidence is evidence that
was unavailable at trial and could not have been discovered sooner through due diligence.”
People v. Harris, 206 Ill. 2d 293, 301, 794 N.E.2d 181, 187 (2002).
¶ 26 OSAD has identified six possible claims in defendant’s successive postconviction
petition. All of defendant’s claims are forfeited as they could have been raised previously.
Moreover, defendant failed to explain why he could not have raised his claims in his initial
pro se postconviction petition, and he failed to provide sufficient information in support of his
claims to establish cause and prejudice for not bringing them in his initial petition. Defendant
further failed to set forth a viable claim of actual innocence or any valid basis on which the trial
court’s judgment could be considered void. The trial court therefore properly denied defendant’s
successive postconviction petition.
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¶ 27 OSAD next asserts no colorable argument can be made the trial court erred in
dismissing defendant’s pro se motion for new trial. As OSAD points out, the trial court properly
found it lacked jurisdiction to review defendant’s motion where it was filed well beyond 30 days
following defendant’s conviction. See People v. Bailey, 2014 IL 115459, ¶ 8, 4 N.E.3d 474(stating a trial court is generally divested of jurisdiction 30 days after the entry of a final
judgment unless a posttrial motion is filed within that time).
¶ 28 Even assuming defendant’s pro se motion for new trial was meant to be construed
as another successive postconviction petition (see People v. Smith, 371 Ill. App. 3d 817, 821, 867
N.E.2d 1150, 1154 (2007) (stating “a motion’s content determines its character, not the title or
label asserted by the movant”), defendant failed to demonstrate a viable claim of actual
innocence or establish cause and prejudice. Defendant does not allege he discovered any new
information which prevented him from raising these claims in his initial postconviction petition,
and he failed to cite any reason why the alleged errors could not have been discovered sooner
through due diligence. We agree with OSAD’s assessment no colorable argument can be made
suggesting the trial court erred in dismissing defendant’s motion for new trial.
¶ 29 III. CONCLUSION
¶ 30 We grant OSAD’s motion for leave to withdraw as appellate counsel and affirm
the trial court’s judgment.
¶ 31 Affirmed.
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