People v. Bailey , 2017 Ill. LEXIS 1067 ( 2017 )

2017 IL 121450
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 121450)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DENNIS L. BAILEY, Appellant.
Opinion filed October 5, 2017.
JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Defendant Dennis Bailey filed in the circuit court of Will County a pro se
motion seeking leave to file a second postconviction petition under section 122-1(f)
of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2014)). The
State filed a written objection to the motion, and the circuit court held a hearing at
which the State appeared and was permitted to argue against the motion and
petition. Defendant was neither present at the hearing nor represented by counsel.
At the close of the hearing, the circuit court denied defendant’s motion for leave to
file a successive postconviction petition.
¶2 Defendant appealed, arguing that the State should not have been allowed to
provide input to the court regarding his motion for leave to file. The appellate court
rejected this argument and affirmed the denial of the motion. People v. Bailey, No.
3-14-0847 (2016) (unpublished summary order under Illinois Supreme Court Rule
23(c)). We granted defendant’s petition for leave to appeal.
¶3 BACKGROUND
¶4 In July 2004, defendant was charged with one count of residential burglary and
one count of disarming a peace officer. The circuit court allowed defendant’s
public defender to withdraw, and defendant proceeded pro se at his 2005 jury trial.
Defendant was found guilty as charged and was sentenced to concurrent prison
terms of 24 years on each of the two counts. On direct appeal, defendant’s sole
claim was that his waiver of trial counsel had not been voluntary and, as a result, the
trial court erred in permitting him to represent himself at trial. The appellate court
affirmed defendant’s convictions and sentence (People v. Bailey, No. 3-06-0139
(2008) (unpublished order under Illinois Supreme Court Rule 23)), and we denied
his petition for leave to appeal (People v. Bailey, No. 106964 (Ill. Nov. 26, 2008)).
¶5 In April 2009, defendant filed pro se his first petition for postconviction relief
under section 122-1(a) of the Act (725 ILCS 5/122-1(a) (West 2014)). The trial
court dismissed the petition on July 16, 2009, and defendant appealed. Appointed
appellate counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley,
481 U.S. 551 (1987), and on April 4, 2011, the appellate court granted counsel’s
motion and affirmed the trial court’s dismissal of the postconviction petition.
People v. Bailey, No. 3-09-0700 (2011) (unpublished summary order under Illinois
Supreme Court Rule 23(c)).
¶6 Defendant then filed in the circuit court of Will County a pro se motion for
leave to file a second postconviction petition pursuant to section 122-1(f) of the Act
(725 ILCS 5/122-1(f) (West 2014)). Defendant did not address cause and prejudice
in the motion, as required by the Act. Rather, he set forth claims alleging actual
innocence, newly discovered evidence, denial of due process, speedy trial
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violation, ineffective assistance of counsel (prior to withdrawal), and abuse of
discretion by the trial court.
¶7 The State filed a written objection, arguing that defendant’s motion for leave to
file a successive postconviction petition should be denied because all of the claims
were either barred by res judicata or did not meet the cause and prejudice test
because no facts were alleged to explain why the claims were not raised in
defendant’s initial postconviction petition. In addition, the State argued that
defendant alleged no facts that would support a finding of actual innocence.
Defendant filed a response to the State’s objection, in which he attempted to
explain the lack of evidentiary support for his motion by asserting that he expected
a favorable ruling in a declaratory judgment suit he filed against the trial judge,
which would provide the evidence necessary to support his claims.
¶8 On October 6, 2014, the circuit court held a hearing on defendant’s motion.
Defendant was not present at the hearing, nor was he represented by counsel. A
Will County assistant State’s Attorney appeared at the hearing and argued that
defendant’s motion for leave to file should be dismissed because the claims raised
in the successive petition could have been raised in defendant’s first postconviction
petition and defendant failed to establish cause and prejudice for failing to do so.
After noting defendant’s written reply to the State’s objections, the circuit court
denied the motion and dismissed the petition.
¶9 Defendant appealed, raising as his only argument that the circuit court erred in
permitting the State to participate at the cause and prejudice stage of the successive
postconviction proceedings. The appellate court rejected this claim and affirmed
the lower court’s denial of defendant’s motion in an unpublished order. People v.
Bailey, No. 3-14-0847 (2016) (unpublished summary order under Illinois Supreme
Court Rule 23(c)). In rejecting defendant’s claim, the appellate court relied on the
majority holding in People v. Bailey, 2016 IL App (3d) 140207, which addressed
the identical issue raised here. In that case, the majority, applying “the rule of law
that parties are generally permitted to respond to motions filed by the opposing
party,” held that the proper inquiry was whether section 122-1(f) of the Act creates
an exception prohibiting the State from filing a response to a defendant’s motion.
Id. ¶ 20. Finding no such prohibition in the statute, the majority held that the State
was permitted to offer input on whether the circuit court should allow the
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defendant’s motion, noting that the State’s input would “assist in bringing
threshold deficiencies in these motions *** to the trial court’s attention.”Id. ¶ 25.
¶ 10 Defendant filed a petition for leave to appeal in this court, which we granted on
January 25, 2017. Ill. S. Ct. R. 315 (eff. Mar. 25, 2016).
¶ 11 ANALYSIS
¶ 12 The single issue before us is whether, under the Post-Conviction Hearing Act
(725 ILCS 5/122-1 et seq. (West 2014)), the denial of defendant’s motion for leave
to file a successive postconviction petition must be reversed because the circuit
court permitted the State to provide input on the merits of the motion and petition at
the cause and prejudice stage. Defendant argues that the State improperly
influenced the trial court’s decision by filing a written objection and by arguing
against the motion at an ex parte hearing held by the court.
¶ 13 The denial of a defendant’s motion for leave to file a successive postconviction
petition is reviewed de novo. People v. Wrice, 2012 IL 111860, ¶ 50. In addition,
the parties agree that our review is de novo here because the issue before us is one
of statutory construction, requiring us to determine the proper interpretation of
section 122-1(f) of the Act, which governs successive postconviction petitions. See
People v. Smith, 2014 IL 115946, ¶ 21. When construing a statute, our primary
objective is to ascertain and give effect to the legislature’s intent. People v.
Whitney, 188 Ill. 2d 91, 97 (1999). When determining the meaning of a provision of
a statute, the court should consider the statute in its entirety, including the subject
addressed and the legislature’s apparent objective. People v. Davis, 199 Ill. 2d 130,
135 (2002).
¶ 14 Section 122-1(f) of the Act provides as follows:
“(f) Only one petition may be filed by a petitioner under this Article without
leave of the court. Leave of court may be granted only if a petitioner
demonstrates cause for his or her failure to bring the claim in his or her initial
post-conviction proceedings and prejudice results from that failure. For
purposes of this subsection (f): (1) a prisoner shows cause by identifying an
objective factor that impeded his or her ability to raise a specific claim during
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his or her initial post-conviction proceedings; and (2) a prisoner shows
prejudice by demonstrating that 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) (West 2014).
¶ 15 The Act contemplates the filing of only one postconviction petition and
provides in section 122-3 (725 ILCS 5/122-3 (West 2014)) that “[a]ny claim of
substantial denial of constitutional rights not raised in the original or an amended
petition is waived.” Thus, section 122-1(f) represents an exception to this rule,
permitting a successive petition, but only if the defendant first obtains permission
from the court and demonstrates to the court cause and prejudice for not having
raised the alleged errors in his or her initial postconviction petition. See Smith, 2014
IL 115946, ¶ 33; People v. Evans, 2013 IL 113471 ¶ 18; People v. Tidwell, 236 Ill.
2d 150, 157 (2010). The provision makes no mention of what role, if any, the State
may play at this cause-and-prejudice stage of successive postconviction
proceedings. In other words, the statute contains no express language either
permitting or forbidding the State’s input when the circuit court must decide
whether to grant or deny a defendant’s motion for leave to file a successive
postconviction petition.
¶ 16 Defendant contends that the absence of language in the Act expressly allowing
the State to file a responsive pleading to the motion for leave to file a successive
postconviction petition, or to provide input on the court’s decision to allow or deny
a successive postconviction petition, should be interpreted to mean that the
legislature did not contemplate the State’s participation at this stage. We agree.
¶ 17 The Post-Conviction Hearing Act is a legislative creation that permits
incarcerated defendants to collaterally attack their conviction by asserting that they
suffered a substantial violation of their constitutional rights at trial. 725 ILCS
5/122-1(a) (West 2014); see also People v. Edwards, 197 Ill. 2d 239, 243-44
(2001). The Act delineates the process for litigating all postconviction petitions. In
section 122-1(b), the Act dictates that a postconviction petition must be verified by
affidavit and filed with the clerk of the court in which the conviction took place.
725 ILCS 5/122-1(b) (West 2014). The filing of a postconviction petition is subject
to certain specified time limitations, except that no such limitations apply to a claim
of actual innocence. 725 ILCS 5/122-1(c) (West 2014).
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¶ 18 Interpreting the Act in People v. Gaultney, 174 Ill. 2d 410, 418 (1996), we
determined that, when an initial postconviction petition is filed, proceedings are
divided into three stages. At the first stage, the circuit court must review the petition
within 90 days of its filing and determine whether the petition states the gist of a
constitutional violation or is either frivolous or patently without merit. 725 ILCS
5/122-2.1(a)(2) (West 2014); see also Edwards, 197 Ill. 2d at 244. If the
postconviction petition is not dismissed at the first stage, the petition advances to
the second stage, at which time the circuit court may appoint counsel to represent
the defendant and to file any amendments to the petition deemed necessary. 725
ILCS 5/122-4 (West 2014); see also Edwards, 197 Ill. 2d at 245-46. At this stage,
the court determines whether the petition and any accompanying documentation
make a substantial showing of a constitutional violation. Gaultney, 174 Ill. 2d at
418; Edwards, 197 Ill. 2d at 246. If the petition fails to do so, it is dismissed. If not
dismissed, however, the petition advances to the third stage, where the circuit court
conducts an evidentiary hearing before deciding whether to grant relief. 725 ILCS
5/122-6 (West 2014); Edwards, 197 Ill. 2d at 246; Gaultney, 174 Ill. 2d at 418.
¶ 19 In section 122-2.1(c), the Act provides that “[i]n considering a petition pursuant
to this Section, the court may examine the court file of the proceeding in which the
petitioner was convicted, any action taken by an appellate court in such proceeding
and any transcripts of such proceeding.” 725 ILCS 5/122-2.1(c) (West 2014). In
Gaultney, we interpreted this section to mean that, at the first stage, “the Act does
not permit any further pleadings from the defendant or any motions or responsive
pleadings from the State. Instead, the circuit court considers the petition
independently, without any input from either side.” Gaultney, 174 Ill. 2d at 418.
¶ 20 Our conclusion in Gaultney that the Act does not contemplate input from the
State until after the petition is evaluated by the court was supported by the fact that
section 122-5 of the Act expressly provides that the State may file a motion to
dismiss or answer the petition “[w]ithin 30 days after the making of an order
pursuant to subsection (b) of Section 122-2.1.” 725 ILCS 5/122-5 (West 2014);
Gaultney, 174 Ill. 2d at 418. This is the point when the petition has advanced to the
second stage and the petitioner, if indigent, is entitled to appointed counsel. 725
ILCS 5/122-4 (West 2014). In Gaultney, therefore, we determined that, although
the Act did not expressly prohibit the State’s input at the first stage, “[t]he sections
of the Act, when considered collectively, do not authorize the filing of a motion to
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dismiss at the first stage.” Gaultney, 174 Ill. 2d at 419. Prior to the second stage, the
State’s input would be “premature and improper.” Id. Similarly, we now hold that it
is premature and improper for the State to provide input to the court before the court
has granted a defendant’s motion for leave to file a successive petition.
¶ 21 Although we have not previously considered the exact issue before us now,
when interpreting section 122-1(f) of the Act in Smith, 2014 IL 115946, we held:
“To meet the cause-and-prejudice test for a successive petition requires the
defendant to ‘submit enough in the way of documentation to allow a circuit
court to make that determination.’ Tidwell, 236 Ill. 2d at 161. ‘This is so under
either exception, cause and prejudice or actual innocence.’ [People v.]
Edwards, 2012 IL 111711, ¶ 24. Consistent with our holdings in Pitsonbarger,
Tidwell, and Edwards, we conclude that leave of court to file a successive
postconviction petition should be denied when it is clear, from a review of the
successive petition and the documentation submitted by the petitioner, that the
claims alleged by the petitioner fail as a matter of law or where the successive
petition with supporting documentation is insufficient to justify further
proceedings. See, e.g., [People v.] Pitsonbarger, 205 Ill. 2d [444,] 463 [(2002)]
(‘a petitioner must establish cause and prejudice as to each individual claim
asserted in a successive petition’); Tidwell, 236 Ill. 2d at 161 (a defendant
seeking leave to institute a successive postconviction ‘must submit enough in
the way of documentation to allow a circuit court to make that determination’);
Edwards, 2012 IL 111711, ¶ 24 (‘leave of court should be denied only where it
is clear, from a review of the successive petition and the documentation
provided by the petitioner’ that the petitioner’s claims fail as a matter of law).”
Smith, 2014 IL 115946, ¶ 35.
¶ 22 We reached this conclusion after noting:
“Section 122-1(f) contains no express provision for fully resolving the
cause-and-prejudice determination prior to proceeding with the three-stage
postconviction process outlined in the Act. Section 122-1(f) does not answer
whether a successive postconviction petitioner must demonstrate cause and
prejudice by actively pleading it, or by actually proving it. If the petitioner is
required to prove cause and prejudice, section 122-1(f) does not provide a
method for presentation of evidence.
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From a practical standpoint, if a petitioner is required to establish cause and
prejudice conclusively prior to being granted leave to file a successive petition,
it may render the entire three-stage postconviction process superfluous. Section
122-1(f) does not provide that a petitioner is entitled to relief upon satisfaction
of the cause-and-prejudice test. It only gives a petitioner an avenue for filing a
successive postconviction petition. The legislature clearly intended for further
proceedings on successive postconviction petitions.” Id. ¶¶ 28-29.
¶ 23 In addition, we recognized that “[s]ection 122-1(f) does not provide for an
evidentiary hearing on the cause-and-prejudice issues and, therefore, it is clear that
the legislature intended that the cause-and-prejudice determination be made on the
pleadings prior to the first stage of postconviction proceedings.” Id. at ¶ 33.
¶ 24 Based on our findings in Smith that the cause and prejudice determination is a
question of law to be decided on the pleadings and supporting documentation
submitted to the court by the defendant-petitioner, and that no provision is made in
the statute for an evidentiary hearing on the issue of cause and prejudice, we now
hold that the State should not be permitted to participate at the cause and prejudice
stage of successive postconviction proceedings. As in Gaultney, although the Act
does not expressly prohibit the State’s input, we find that the Act contemplates an
independent determination by the circuit court. The motion for leave to file is
directed to the court, and it is the court that must decide the legal question of
whether a defendant has satisfied the section 122-1(f) requirement of showing
cause and prejudice. This is a preliminary screening to determine whether
defendant’s pro se motion for leave to file a successive postconviction petition
adequately alleges facts demonstrating cause and prejudice. Id. ¶ 34. In other
words, the court must determine whether defendant has made a prima facie
showing of cause and prejudice. If the defendant has done so, the court will grant
leave for the petition to be filed.
¶ 25 Because the 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. As we said in Smith, satisfying the section 122-1(f) cause and
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prejudice requirement does not entitle the defendant to relief but rather “only gives
a petitioner an avenue for filing a successive postconviction petition.” Id. ¶ 29.
Further proceedings on successive postconviction petitions were clearly
contemplated by the legislature. Id.
¶ 26 If the court determines that cause and prejudice have been adequately alleged
and allows the petition to be filed, it advances to the three-stage process for
evaluating postconviction petitions. During this process, the State would have an
opportunity to seek dismissal of the petition on any grounds, including the
defendant’s failure to prove cause and prejudice for not having raised the claims in
the initial postconviction petition.
¶ 27 We are further persuaded that the section 122-1(f) requirement of
demonstrating cause and prejudice should be an independent determination by the
court because successive postconviction petitions are typically filed pro se and the
Act makes no provision for a defendant to be entitled to counsel until after a
postconviction petition is docketed. 725 ILCS 5/122-4 (West 2014). In our view,
permitting the State to argue against a finding of cause and prejudice at this
preliminary stage, when the defendant is not represented by counsel, is inequitable,
fundamentally unfair, and raises due process concerns.
¶ 28 The State does not directly address the fairness concern but, rather, maintains
that because the Act does not affirmatively prohibit the State from opposing a
motion for leave to file a successive postconviction petition, the statute should be
interpreted as allowing the State’s input. The State contends that permitting it to
provide input on the motion is commensurate with the “default rule” that parties are
generally permitted to respond to motions for leave to file. The State cites cases in
which a party, without any specific statutory authority, was permitted to file an
objection to an opposing party’s motion for leave to file. See Italia Foods, Inc. v.
Sun Tours, Inc., 2011 IL 110350, ¶ 4 (motion for leave to file an amended
complaint); People v. Dittmar, 2011 IL App (2d) 091112, ¶ 35 (motion for leave to
file a late pleading); People v. Hernandez, 345 Ill. App. 3d 163, 166 (2d Dist. 2004)
(motion for leave to file a supplemental brief).
¶ 29 What is immediately apparent, however, is that none of these cases have
anything to do with motions for leave to file a successive petition within the context
of postconviction proceedings. Although postconviction proceedings are
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considered civil in nature, they are sui generis and for that reason general civil
practice rules and procedures apply only to the extent they do not conflict with the
Post-Conviction Hearing Act. People v. Coleman, 206 Ill. 2d 261, 288 (2002);
People v. Chester, 2014 IL App (4th) 120564. For this reason, we find the cases
cited by the State offer no guidance on interpreting the statutory provision before
us.
¶ 30 The State also argues that we should find that the statute permits the State to
provide input to the circuit court at the cause and prejudice stage because in People
v. Smith, 383 Ill. App. 3d 1078, 1089-90 (2008), People v. Collier, 387 Ill. App. 3d
630, 639 (2008), People v. Welch, 392 Ill. App. 3d 948, 955 (2009), and People v.
Crenshaw, 2015 IL App (4th) 131035, ¶¶ 31, 35, our appellate court has held that
the circuit court did not err when it allowed the State’s participation before ruling
on the defendant’s motion for leave to file a successive postconviction petition.
¶ 31 We have reviewed each of the cases cited by the State and find them to be
inapposite. Notably, in both Smith and Collier, due to their procedural posture, the
defendants were represented by counsel when their motions for leave to file a
successive postconviction petition were submitted to the court. In addition, the
Smith and Collier courts found no error resulting from the State’s participation
because, as the Collier court explained:
“Here, as in Smith, the record fails to demonstrate that the State discussed with
or influenced the court in its decision to deny defendant leave to file his
petition. Neither the merits of the petition nor the procedural hurdles were
discussed. The colloquy between the court and the assistant State’s Attorney
was directed only to the procedural posture of the case and the proper method of
proceeding on remand.” 387 Ill. App. 3d at 640.
¶ 32 Thus, Smith and Collier actually appear to support the notion that the State’s
input on the matter of cause and prejudice is not appropriate.
¶ 33 As noted above, in the case at bar, defendant filed his motion for leave to file a
successive postconviction petition pro se, and he was not represented by counsel
before the motion was dismissed. In addition, when the State filed its written
objection to defendant’s motion and argued against the motion at an ex parte
hearing, the State’s arguments were not directed to some collateral matter but to the
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ultimate issue before the court, i.e., whether defendant had shown cause and
prejudice. We cannot say that the court was not influenced by the State’s arguments
when it denied defendant’s motion. Accordingly, Smith and Collier are inapposite.
¶ 34 The State’s reliance on Welch and Crenshaw is also misplaced. In Welch, the
defendant filed pro se a second postconviction petition along with a petition for
relief pursuant to section 2-1401 of the Code of Civil Procedure. See 735 ILCS
5/2-1401 (West 2014). Defendant was appointed counsel, who amended the
postconviction petition to set forth additional claims and abandoned the
defendant’s pro se section 2-1401 petition. The amended postconviction petition
was later dismissed, and that decision was upheld on appeal. Thereafter, the
defendant filed another section 2-1401 petition pro se. The State moved to dismiss
the petition as untimely, but the trial court reserved ruling on the State’s motion and
appointed counsel to represent the defendant. Appointed counsel then chose not to
pursue defendant’s pro se section 2-1401 petition and, instead, filed a motion for
leave to file a successive postconviction petition, raising an issue different from the
one the defendant raised in his pro se section 2-1401 petition. A hearing was held,
at which the circuit court heard argument from both parties. The court denied the
motion for leave to file a successive postconviction petition, finding the issue raised
in the third successive petition had already been addressed and fully litigated and
therefore defendant could not satisfy the cause and prejudice test. Welch, 392 Ill.
App. 3d at 951.
¶ 35 On appeal, defendant’s appointed counsel filed a Finley motion to withdraw,
but the court denied the motion and ordered the parties to brief two issues. One of
the issues to be briefed was whether it had been improper for the trial court to allow
the State to argue against the motion for leave to file a successive postconviction
petition. After briefing, the appellate court affirmed the trial court’s denial of the
motion for leave to file a successive postconviction petition. The court concluded
that no error had occurred as a result of the State’s participation, noting that “both
parties participated in arguments regarding [defendant’s] motion for leave to file
his successive petition.” Id. at 955. The court then affirmed the denial of the
defendant’s motion for leave to file a successive postconviction petition, stating:
“The parties have not offered, and we have not found, any authority prohibiting
input from the State at this stage of postconviction proceedings.” Id.
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¶ 36 After Welch was decided, the issue was addressed in Crenshaw, 2015 IL App
(4th) 131035. The Crenshaw court cited Welch and, like Welch, found no error in
allowing the State to provide input at the cause and prejudice stage of a successive
postconviction proceeding, holding:
“The State’s input can offer assistance to the trial court in making its decision
whether to grant leave—assistance that may prove helpful given the issues
raised and the passage of time, the latter evinced in this case by the nearly three
years that elapsed between the filing of the amended postconviction petition
and the petition for leave to file a successive petition.” Id. ¶ 33.
¶ 37 The defendant in Crenshaw, like the defendant in the case at bar, pointed out
that the House of Representatives of the ninety-eighth General Assembly had
passed an amended version of section 122-2.1(f), which required a circuit court to
decide whether to grant leave to file a successive postconviction petition “ ‘without
pleadings from the State.’ ” (Emphasis omitted.) Id. ¶ 34 (quoting 98th Ill. Gen.
Assem., House Bill 2961, 2013 Sess.) The defendant argued that, although this
amended version of section 122-2.2(f) stalled in the House, the court should find
that allowing the State to participate at the motion stage was contrary to the
legislature’s “proposed intent.” The Crenshaw court rejected this argument,
however, stating that “proposed intent” is not the law and “[u]ntil such time as our
supreme court or the legislature says otherwise, we find nothing prevents the State
from providing its input on a defendant’s motion for leave to file a successive
postconviction petition.” 2015 IL App (4th) 131035, ¶ 35.
¶ 38 We find neither of these cases to be helpful in resolving the issue before us.
Welch, like Smith and Collier, is factually distinguishable because of its procedural
posture and because the defendant was represented by counsel. More importantly,
when interpreting section 122-1(f), we are not persuaded by the Welch and
Crenshaw courts’ reliance on the absence of language in the statute prohibiting the
State’s participation at the cause and prejudice stage of successive postconviction
proceedings.
¶ 39 As previously noted, the Act contemplates the filing of only one petition
without leave of court (725 ILCS 5/122-1(f) (West 2014)), and any claim not
presented in an original or amended petition is waived (725 ILCS 5/122-3 (West
2014)). For this reason, successive postconviction petitions are highly disfavored.
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Edwards, 2012 IL 111711, ¶ 29. We acknowledged in Smith that “[s]ection
122-1(f) does not provide that a petitioner is entitled to relief upon satisfaction of
the cause-and-prejudice test. It only gives a petitioner an avenue for filing a
successive postconviction petition.” 2014 IL 115946, ¶ 29. In this respect, although
the standards are different, the cause and prejudice stage is similar to the circuit
court’s screening of a defendant’s initial petition at the first stage, when the court
must independently determine whether the defendant has met his burden of
demonstrating the gist of a constitutional violation.
¶ 40 Moreover, if we were to agree that the circuit court may hold a hearing at which
the State may provide input on whether cause and prejudice has been demonstrated,
would not such a hearing be an evidentiary hearing, which is not authorized by the
Act? Also, if we were to permit such a hearing despite the lack of statutory
authority, would not due process require that the defendant be represented by
counsel or, at the very least, be present at such a hearing? Consequently, by holding
that the State may participate at the cause and prejudice stage, we would
necessarily introduce additional costs—in terms of time and expenditure of judicial
resources, as well as the cost of representation and the transporting of defendant
from prison—all of which would defeat the apparent purpose of the Act, which is to
expeditiously screen petitions which are highly disfavored. For this reason, too, we
must reject such an interpretation of section 122-1(f) of the Act.
¶ 41 As a final matter, having found that the circuit court erred by permitting the
State’s input, we must consider the relief to which defendant is entitled. Defendant
requests that we reverse the circuit court’s denial of his motion and remand to the
circuit court for consideration of his motion by a different judge. The State,
however, contends that defendant’s motion is deficient on its face and, therefore,
there is no need to remand the matter.
¶ 42 In the interest of judicial economy, we have reviewed defendant’s motion for
leave to file his successive postconviction petition ourselves and find that there is
no need for remand. Defendant makes no attempt in his motion to satisfy the cause
and prejudice requirement of section 122-1(f). No facts are alleged for even a
cursory showing of cause and prejudice.
¶ 43 As indicated above, defendant was found guilty on two counts: disarming a
police officer and committing residential burglary for having entered, without
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authority, the residence located at 1453 Garland Court in Joliet on July 23, 2004. In
his motion for leave to file a successive postconviction petition, defendant first
alleges actual innocence. He begins by stating, “Petitioner argue [sic] that this issue
was mention [sic] in his first post-conviction petition, during a pre-postconviction
motion for counsel’s [sic] other then [sic] an [sic] public defender.” Defendant then
goes on to explain that he obtained “newly discovered evidence” in the form of a
signed and notarized affidavit by Ruby Hughes, dated December 20, 2010, in
which Ruby (now deceased) indicates that she saw defendant, in the early morning
hours of July 22, 2004, knock on the front door of the residence at 1453 Garland
Court before entering.
¶ 44 There are several serious defects with this claim of actual innocence. First, it
would appear that, by defendant’s own admission, this issue was previously raised
and, therefore, res judicata applies. Second, even if we were to consider the actual
innocence claim on its merits, it only attacks defendant’s conviction for residential
burglary and does not even mention defendant’s conviction for disarming a police
officer. Finally, assuming that the discrepancy in the dates is simply a clerical error,
the affidavit—which is not attached to the motion because the only remaining copy
of the affidavit “was placed in the Menard Correctional Center Mailbox” and
apparently is no longer available—merely suggests that defendant may have sought
permission to enter the residence by knocking. The affidavit does not assert that
anyone answered the knock and permitted defendant to enter, nor does it negate the
fact that, at trial, Tommy Taylor, who was living at 1453 Garland Court and
encountered defendant in his residence, testified that he did not give defendant
permission to enter.
¶ 45 Defendant raises additional claims in which he alleges that “newly discovered
evidence” exists, which provides grounds for granting him postconviction relief in
the form of a new trial. It is true that cause for not having raised a claim earlier may
be supported by the fact that exculpating evidence only recently came to light and
could not have been discovered earlier. In this case, however, defendant’s motion
fails to present any facts that would support a finding that the evidence is “newly
discovered.” For example, defendant claims that certain medical evidence
regarding an injury to his left wrist, which would show that he could not have
committed the offense of disarming a police officer, is “newly discovered” because
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the trial court, having determined that the evidence was irrelevant, refused to allow
him to present it at trial.
¶ 46 Defendant also raises a speedy trial violation claim—based on the trial court’s
grant of defense counsel’s request for a continuance so that defendant’s fitness for
trial could be determined—and he raises a due process claim—based on his
assertion that the doctor who evaluated his fitness for trial did not consider whether
he was fit to represent himself at trial. It is clear, after examining defendant’s
motion for leave to file a successive postconviction petition, that he has failed to
demonstrate cause and prejudice and that the claims he alleges fail as a matter of
law and do not justify further proceedings. Accordingly, we affirm the denial of
defendant’s motion.
¶ 47 CONCLUSION
¶ 48 In sum, we find that section 122-1(f) of the Post-Conviction Hearing Act
permits a defendant to file a successive postconviction petition only if he or she is
able to demonstrate cause and prejudice; that is, the defendant must allege facts to
explain why the claims being asserted in the successive petition could not have
been raised in the initial postconviction petition. Whether this prima facie showing
of cause and prejudice has been made is a question of law to be independently
determined by the circuit court.
¶ 49 In the case at bar, the circuit court permitted the State to argue against a finding
of cause and prejudice. Based on our holding in this case, this was error. However,
because the question of whether defendant’s motion demonstrates cause and
prejudice is a question of law and in the interest of judicial economy, we have
chosen to review defendant’s motion in lieu of remanding the matter to the circuit
court. Upon examination, we find that, as a matter of law, defendant has failed to
demonstrate cause and prejudice for not raising his claims, including his claim of
actual innocence. Accordingly, we affirm the denial of defendant’s motion for
leave to file a second postconviction petition.
¶ 50 Affirmed.
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