People v. Smith

2020 IL App (3d) 170666Opinion filed July 28, 2020
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2020
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-17-0666
v. ) Circuit No. 10-CF-1345
)
MICKEY D. SMITH, ) Honorable
) Amy Bertani-Tomczak,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
Presiding Justice Lytton concurred in the judgment and opinion.
Justice Schmidt dissented, with opinion.
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OPINION
¶1 The defendant, Mickey D. Smith, appeals the Will County circuit court’s denial of his
motion for leave to file a successive postconviction petition. Specifically, the defendant argues
that the court erred in seeking and relying on input from the State in denying his motion.
¶2 I. BACKGROUND
¶3 The defendant was charged by indictment with two counts of first degree murder (720
ILCS 5/9-1(a)(1), (a)(2) (West 2010)) and one count of being an armed habitual criminal (id.
§ 24-1.7). The defendant pled guilty to one count of first degree murder in exchange for the
State’s agreement to dismiss the other two charges, withdraw its intent to seek enhanced
sentencing, and recommend a sentence of 30 years’ imprisonment. The court accepted the
defendant’s plea and sentenced him to 30 years’ imprisonment. The defendant did not file a
direct appeal.
¶4 Approximately three months after pleading guilty, the defendant filed a pro se
postconviction petition. The petition alleged that the defendant’s plea should be vacated because
his sentence was void. Specifically, the defendant alleged that his sentence was not authorized by
statute because it did not contain a mandatory firearm enhancement. The circuit court summarily
dismissed the petition. The appellate court reversed the judgment of the circuit court, holding
that the defendant’s sentence and plea were void. People v. Smith, 2013 IL App (3d) 110738,
¶ 14. The supreme court reversed the judgment of the appellate court and affirmed the judgment
of the circuit court. People v. Smith, 2015 IL 116572, ¶ 35.
¶5 The defendant filed a motion for leave to file a successive postconviction petition. The
defendant sought to raise a claim that the court improperly allowed the State to amend the
indictment without filing a motion requesting the court’s permission or resubmitting it to the
grand jury.
¶6 At a status hearing at which the defendant was not present, the court noted that the
motion for leave to file a successive petition had been filed. The court asked: “I think the State is
supposed to respond to this, right?” The court then granted an assistant state’s attorney’s request
to continue the matter. The State filed an “Objection to Motion for Leave to File a Successive
Post-Conviction Petition,” which argued that the defendant had not met the cause and prejudice
standard. The defendant filed a response.
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¶7 During a hearing at which the defendant was not present, the circuit court stated that it
was denying the defendant’s motion for leave to file a successive postconviction petition and
“granting the State’s motion to dismiss.”
¶8 II. ANALYSIS
¶9 The defendant argues that the circuit court improperly sought and relied on the State’s
input in denying his motion for leave to file a successive postconviction petition. The State
concedes that the circuit court erred in seeking and relying on its input at the cause and prejudice
stage, and we accept the State’s confession of error on this point. Our supreme court held in
People v. Bailey, 2017 IL 121450, ¶ 20, that it was “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 postconviction petition.”
¶ 10 The defendant argues that the case should be remanded for further proceedings on his
motion for leave to file a successive postconviction petition as a result of this error. The State
requests, in the interest of judicial economy, that we conduct an independent cause and prejudice
determination rather than remanding the matter. We note that the supreme court and appellate
court have reviewed the merits of defendants’ motions for leave to file successive postconviction
petitions in several cases in the interest of judicial economy. See, e.g., id. ¶ 42; People v.
Conway, 2019 IL App (2d) 170196, ¶ 23; People v. Ames, 2019 IL App (4th) 170569, ¶ 23.
¶ 11 However, we believe that the best practice is to remand the matter to the circuit court to
conduct an examination of the motion for leave without the State’s improper participation. A
new judge who has not already heard the State’s objection should preside over the proceeding on
remand. This will ensure that the circuit court conducts a truly independent examination of the
motion for leave. See Bailey, 2017 IL 121450, ¶ 24 (“[W]e find that the Act contemplates an
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independent determination by the circuit court.”). If the motion for leave is denied by the circuit
court after an independent determination, the defendant will then have the opportunity to seek
review of the circuit court’s decision in this court.
¶ 12 Notably, in the instant appeal, neither party has made any argument regarding the merits
of the defendant’s motion for leave to file a successive postconviction petition. The defendant
requests only that we remand the matter, and the State expressly declines to make an argument
regarding the merits due to the concerns set forth in Justice Holdridge’s special concurrence in
People v. Baller, 2018 IL App (3d) 160165, ¶¶ 20-23 (Holdridge, J., specially concurring).
Specifically, Justice Holdridge cautioned that appellate argument from the State may influence
the appellate court’s decision, which would violate the rule set forth in Bailey. Id. Because
appellate argument on the merits of the motion for leave has not been provided by either party
and because such argument from the State—the only party requesting that we review the
merits—would be improper at this stage, the more appropriate procedure is to remand the matter
to the circuit court.
¶ 13 The dissent asserts that our decision to remand the matter is based on this court’s earlier
decision in People v. Munson, 2018 IL App (3d) 150544. In Munson, this court held that the
Bailey court reached the merits of the motion for leave to file a successive postconviction
petition as an exercise of supervisory authority, which the appellate court lacks. Id. ¶ 10.
However, our holding in the instant case is not that remand is required based on the appellate
court’s lack of supervisory authority. Rather, our holding is that remand is the more appropriate
remedy based on the Bailey court’s reasoning that the “the Act contemplates an independent
determination by the circuit court” (emphasis added) (Bailey, 2017 IL 121450, ¶ 24) and the fact
that neither party has argued the merits of the motion for leave (supra ¶ 12).
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¶ 14 We acknowledge that the Bailey court went on to address the merits of the motion for
leave to file a successive postconviction petition, and that other cases have held that the appellate
court may reach the merits in the interest of judicial economy. See Bailey, 2017 IL 121450, ¶ 42;
Conway, 2019 IL App (2d) 170196, ¶ 23; Ames, 2019 IL App (4th) 170569, ¶ 23. However, none
of these cases have held that the appellate court is required to reach the merits. Even if we accept
that we have the power to reach the merits, we decline to do so for the aforementioned reasons.
¶ 15 Finally, the dissent suggests that following our logic regarding the need for a new judge
on remand, this panel may be prohibited from deciding the defendant’s next appeal. We believe
these concerns are unfounded. Unlike the original trial judge, this panel has not considered the
merits of the defendant’s motion for leave to file a successive postconviction petition.
¶ 16 III. CONCLUSION
¶ 17 The judgment of the circuit court of Will County is vacated. The matter is remanded with
directions for the circuit court to conduct an independent determination of the defendant’s
motion for leave to file a successive postconviction petition before a new judge.
¶ 18 Vacated and remanded with directions.
¶ 19 JUSTICE SCHMIDT, dissenting:
¶ 20 I respectfully dissent. I agree with the majority that the trial court erred in allowing the
State to participate in the court’s determination that defendant should be denied leave to file a
successive postconviction petition. I part company with the majority when it determined that
Bailey requires reversal and remand. I also disagree that the cause should be reassigned to a
different judge on remand.
¶ 21 In Bailey, the supreme court found that the trial court erred in allowing the State’s
participation at the motion for leave to file a successive postconviction stage. People v. Bailey,
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2017 IL 121450, ¶¶ 41-42. Unlike the majority in this case, the supreme court went on to review
the merits of defendant’s motion in the interests of judicial economy. Id. ¶ 41. The supreme court
ultimately affirmed the trial court’s denial of leave as the record demonstrated that defendant
failed to establish cause and prejudice to file a successive postconviction petition. Id. ¶ 46. That
is, any error was harmless beyond a reasonable doubt.
¶ 22 The genesis of the majority’s belief that remand is necessary under Bailey comes from
this court’s decision in People v. Munson, 2018 IL App (3d) 150544. Munson incorrectly
construed and applied Bailey. Munson assumed the supreme court in Bailey reached the merits of
the motion for leave as an exercise of its supervisory authority, which this court lacks. Id. ¶ 10.
Without explanation, this court’s train jumped the tracks in Munson when it baldly asserted that
to review the merits of defendant’s motion would involve an exercise of supervisory authority.
Id. The problem with this conclusion is that no such language exists in the Bailey decision. If the
supreme court exercised its supervisory authority, then the Bailey decision would have said as
much. See People v. Davis, 156 Ill. 2d 149, 160 (1993) (explicitly noting that the supreme court
was exercising its supervisory authority).
¶ 23 Our supreme court exercises its supervisory authority “only if the normal appellate
process will not afford adequate relief and the dispute involves a matter important to the
administration of justice, or where intervention is necessary to keep an inferior court or tribunal
from acting beyond the scope of its authority.” (Internal quotation marks omitted.) Vasquez
Gonzalez v. Union Health Service, Inc., 2018 IL 123025, ¶ 17. Nothing about the circumstances
in Bailey suggest that the normal appellate process would provide inadequate relief. Nor did the
supreme court need to intervene to prevent the lower court from exceeding its authority. Instead
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of exercising its supervisory authority, Bailey did what courts of review do all the time: it
reviewed the merits of defendant’s motion in the interest of judicial economy.
¶ 24 The majority acknowledges authority rejecting Munson’s interpretation of Bailey. Supra¶ 10 (citing People v. Conway, 2019 IL App (2d) 170196; People v. Ames, 2019 IL App (4th)
170569). Both Conway and Ames rejected the notion that the supreme court exercised its
supervisory authority in Bailey. These decisions correctly observed that the Bailey court reached
the merits of defendant’s motion for leave in the interest of judicial economy. Conway, 2019 IL
App (2d) 170196, ¶ 15; Ames, 2019 IL App (4th) 170569, ¶.23. Therefore, Conway and Ames
both held that the appellate court could consider the merits of a motion for leave. We have
always reviewed the trial court’s judgment rather than its reasoning, and we may affirm on any
basis supported by the record. See, e.g., People v. Olsson, 2015 IL App (2d) 140955, ¶ 17. Any
other result would be an absolute waste of judicial resources.
¶ 25 Moreover, the majority ignores the longstanding principle that successive postconviction
petitions are disfavored. See People v. Edwards, 2012 IL 111711, ¶ 29 (citing People v. Wright,
189 Ill. 2d 1, 38 (1999). There is no constitutional right to a successive postconviction petition,
only a statutory right. Despite this, the majority gives defendant’s motion for leave “most
favored status” finding it exempt from the well-settled rule that we can affirm on any basis in the
record. So, if the majority is correct, the supreme court in Bailey must have signaled its
invocation of its supervisory authority with a dog whistle heard only by chosen members of the
Third District.
¶ 26 In fairness to the majority, it would not be the first time the supreme court said one thing
then later explained that it meant something else. For example, in construing Illinois Supreme
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Court Rule 604(d) (eff. July 1, 2006), the supreme court explained that its use of the word “or” in
Rule 604(d) actually meant “and.” See People v. Tousignant, 2014 IL 115329, ¶ 20.
¶ 27 In this case, the record is clear that defendant failed to allege facts to support cause for
leave to file his successive postconviction petition. Defendant alleged that the trial court
improperly allowed the State to amend the indictment without filing a motion requesting the
court’s permission or resubmitting it to the grand jury. Defendant claimed he had cause to excuse
his failure to raise this issue in his first postconviction petition “because the earlier decision did
not adequately resolve all of the issues.” How did this prevent defendant from raising his
successive claim in his original postconviction petition? Defendant failed to explain this. The
truth is nothing about the earlier proceedings prevented defendant from raising this claim earlier.
There is no need to discuss prejudice.
¶ 28 Finally, to literally add insult to injury, the majority goes on to hold that the case should
be assigned to a different judge on remand. Supra ¶ 17. There is no absolute right to a
substitution of judge at a postconviction proceeding. People v. Hall, 157 Ill. 2d 324 (1993). It is
an insult to the bench to assume the trial judge is incapable of making a fair and independent
decision on remand. I fail to see any malicious intent in the trial court’s error in allowing the
State’s input and there is “no indication that the court will not follow the law on remand.” People
v. White, 2017 IL App (1st) 142358, ¶ 43. Following the majority’s logic, will this panel be
prohibited from deciding defendants next appeal? That is absurd. Trial judges hear inadmissible
evidence and objectionable arguments on virtually a daily basis. Absent evidence to the contrary,
we presume they follow the law.
¶ 29 I would affirm the trial court.
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