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The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George ANDERSON, Defendant-Appellant.
Following a bench trial, defendant George Anderson was found guilty of first degree murder and two counts of attempted first-degree murder. Defendant was subsequently sentenced to a term of life imprisonment for first-degree murder and consecutive terms of 25 years' imprisonment for the two attempted first degree murder convictions. Defendant appeals the trial court's order denying leave to file his fourth successive postconviction petition, asserting that the recent holding in People v. Ortiz, 235 Ill.2d 319, 336 Ill.Dec. 16, 919 N.E.2d 941 (2009), relieves a defendant who is setting forth a claim of actual innocence from satisfying the “cause-and-prejudice” test as set forth in section 122-1(f) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2006)). We agree with defendant's argument; however, we hold that a defendant who sets forth a claim of actual innocence must still file a motion seeking leave of court to file a successive postconviction petition pursuant to section 122-1(f) of the Act. For the following reasons, we affirm the trial court's dismissal of defendant's fourth successive postconviction petition without prejudice to filing a motion in the circuit court seeking leave to file such a petition pursuant to section 122-1(f) of the Act.
I. BACKGROUND
On the afternoon of August 21, 1991, 11-year-old Jeremiah Miggins was caught in crossfire and killed while in his neighbor's yard. Several members of warring gangs were arrested and charged with the victim's shooting death. Codefendants Michael Sutton and Jerome Johnson were determined to be the principal offenders and convicted in separate trials on charges related to the shooting.
In a separate bench trial, defendant was charged with first degree murder and attempted first degree murder for his role in the shooting. At trial, the State advanced the theory that defendant was accountable for Johnson's actions. The State argued that: defendant knew Johnson was armed when he drove him to retrieve his stolen vehicle; defendant and Johnson expected an armed confrontation; defendant and Johnson used a vehicle not owned by either to avoid detection when driving to the scene; and defendant drove Johnson from the scene after the shooting. Defendant asserted that he simply drove Johnson to pick up his car and did not know he was armed or that a confrontation was likely. Testimony at trial was provided by an eyewitness not involved in the shooting, two men associated with Sutton, detectives that investigated the scene, an assistant State's Attorney and defendant. In addition, the State entered defendant's custodial statement into evidence.
On November 30, 1994, the trial court found defendant guilty of first degree murder and two counts of attempted first degree murder under an accountability theory based on his professed knowledge that Johnson was armed and his involvement in driving to and from the shooting. Defendant was sentenced to life imprisonment based on a prior first degree murder conviction and consecutive 25-year terms for his convictions. In a summary order, this court rejected defendant's direct appeal in which he argued that the State failed to prove him guilty beyond a reasonable doubt. People v. Anderson, No. 1-95-0500 (May 17, 1996) (unpublished order under Supreme Court Rule 23). This court stated that, in examining the record in a light most favorable to the State, “[d]efendant's actions and post-arrest statement support the trial court's findings that defendant knew the co-defendant was armed and intended to commit a shooting, and that defendant actively participated in the offense by driving the getaway car.” Anderson, slip op. at 1-2.
On May 30, 1996, defendant filed his first pro se postconviction petition. The petition was denied by the trial court on July 30, 2006. Defendant appealed and this court affirmed. People v. Anderson, No. 1-96-3406 (November 22, 1996) (unpublished order under Supreme Court Rule 23). The record is unclear, but at some point thereafter, defendant filed a successive pro se postconviction petition that was also summarily dismissed. People v. Anderson, No. 1-01-4497, slip op. at 1-2, 335 Ill.App.3d 1184, 297 Ill.Dec. 203, 836 N.E.2d 934 (November 22, 2002) (unpublished order under Supreme Court Rule 23). On August 16, 2001, defendant filed his third postconviction petition which was summarily dismissed by the trial court on October 30, 2001. Defendant again appealed and counsel filed a motion to withdraw. Defendant filed a response pro se, arguing that his sentence violated the ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This court again affirmed the trial court's dismissal of the petition. People v. Anderson, No. 1-01-4497.
On November 13, 2006, defendant filed the instant fourth successive postconviction petition. The petition was presented as a petition to vacate judgment pursuant to section 2-1401 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1401 (West 2006). Defendant alleged that: the State improperly withheld exculpatory evidence; the State committed prosecutorial misconduct by using perjured testimony at trial; he was not proved guilty beyond a reasonable doubt; and he suffered from ineffective assistance of appellate counsel.
These allegations rested on grounds similar to those in the previously rejected petitions. However, defendant also alleged that the State failed to disclose a ballistics report that showed that he did not fire the gun and that the proposed testimony of Johnson was improperly suppressed. Defendant attached an affidavit from Johnson in which Johnson stated that he was lied to by the attorneys on defendant's case so that he would not testify at defendant's trial. Johnson further averred that defendant was unarmed and did not assist in the shooting, but merely drove Johnson to pick up his car when a shooting broke out.
On December 18, 2006, the trial court entered a written order admonishing defendant pursuant to People v. Shellstrom, 216 Ill.2d 45, 295 Ill.Dec. 657, 833 N.E.2d 863 (2005), that it intended to recharacterize defendant's section 2-1401 petition as a successive postconviction petition. The court advised defendant that he “may wish to withdraw the pleading; (2) amend the pleading so that it contains all appropriate claims under the [Act] relevant to petitioner's cause of action; or (3) do nothing.” The trial court granted defendant 21 days to inform the court, in writing, of his chosen course of action. The order also, again citing Shellstrom, specifically admonished defendant that “this re-characterization means that any subsequent post-conviction petition will be subject to the restrictions pertaining to successive postconviction petitions.”
Defendant did not undertake any action in response to this order. On February 27, 2007, more than 70 days from the order recharacterizing the section 2-1401 petition, the trial court entered a 6-page order titled “Order Denying Petitioner Leave to File a Successive Petition for Post-Conviction Relief.” Specifically, the court found that defendant failed to meet the cause-and-prejudice test of section 122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2006). The trial court stated that the ballistics report was available at the time of defendant's first postconviction petition and therefore could not be considered newly discovered evidence. Further, it held that it would not be exculpatory. The court found it was inconclusive and, since defendant was convicted on an accountability theory, the issue of whether Johnson or Sutton fired the fatal shot was immaterial.
With respect to Johnson's testimony, the court opined that, even if the entirety of Johnson's affidavit were true, it would not exculpate defendant. The court reasoned that the trial court and appellate court both had found that defendant did not pull the trigger of the gun that killed the victim, but that he knew his codefendants were armed and they intended to commit a shooting. Accordingly, the trial court concluded that defendant failed to show cause and prejudice.
On March 23, 2007, defendant filed a motion to reconsider. Defendant again asserted that the State did not prove his guilt beyond a reasonable doubt. Defendant claimed that he showed cause and prejudice and should be granted leave to file an amended pro se petition. The trial court denied that motion on April 5, 2007, and this appeal followed.
II. ANALYSIS
The trial court held that defendant failed to satisfy the cause-and-prejudice test of section 122-1(f) of the Act and denied leave to file the successive postconviction petition. Therefore, the issue before this court is whether the trial court erred in denying defendant leave to file his petition. We review de novo a trial court's dismissal of a postconviction petition without an evidentiary hearing. People v. Coleman, 183 Ill.2d 366, 380-89, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998). We review the trial court's judgment, not the reasons cited. We may affirm on any basis supported by the record if the judgment is correct. People v. Lee, 344 Ill.App.3d 851, 853, 280 Ill.Dec. 24, 801 N.E.2d 969 (2003).
The State rests on the contention that dismissal was proper simply based on defendant's failure to seek leave of court to file a successive postconviction petition under section 122-1(f) of the Act. See 725 ILCS 5/122-1(f) (West 2006); People v. DeBerry, 372 Ill.App.3d 1056, 1060, 311 Ill.Dec. 382, 868 N.E.2d 382 (2007). The State contends that the language of the Act is clear in this requirement. See People v. LaPointe, 227 Ill.2d 39, 44, 316 Ill.Dec. 208, 879 N.E.2d 275 (2007). Section 122-1(f) provides in full:
“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 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 2006).
The State asserts that under LaPointe, and the line of similar cases on point, the dismissal of defendant's petition was proper based solely on defendant's failure to seek leave to file the petition (LaPointe, 227 Ill.2d at 44, 316 Ill.Dec. 208, 879 N.E.2d 275; DeBerry, 372 Ill.App.3d at 1059-60, 311 Ill.Dec. 382, 868 N.E.2d 382; People v. Wyles, 383 Ill.App.3d 271, 275-76, 322 Ill.Dec. 422, 891 N.E.2d 437 (2008); People v. Daniel, 379 Ill.App.3d 748, 750-51, 319 Ill.Dec. 620, 886 N.E.2d 383 (2008); People v. Spivey, 377 Ill.App.3d 146, 149-50, 316 Ill.Dec. 324, 879 N.E.2d 391 (2007); and People v. Shipp, 375 Ill.App.3d 829, 833, 314 Ill.Dec. 643, 875 N.E.2d 153 (2007)). In each of these cases, the reviewing court rejected an invitation to consider the merits of the petition involved or the trial court's reasons for dismissal, instead affirming the dismissal in each case based on the procedural hurdle of section 122-1(f). The State argues that defendant's failure to request leave to amend his petition following the trial court's admonishment pursuant to Shellstrom distinguishes this case from the authority cited by defendant. The State concludes that this court must follow the plain language of the Post-Conviction Hearing Act and affirm the dismissal of the petition.
Defendant concedes that he did not file a motion for leave to file his fourth successive postconviction petition. However, defendant notes that unlike the cases relied on by the State, he did not file anything under the Act. Rather, defendant filed a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)). Because section 122-1(f) only bars a postconviction petition “filed by the petitioner,” defendant argues that despite the recharacterization of his petition, the statutory bar does not apply here because he did not file a postconviction petition, but a petition to vacate.
Defendant argues that this case presents unique circumstances similar to those present in People v. Smith, 383 Ill.App.3d 1078, 322 Ill.Dec. 808, 892 N.E.2d 55 (2008). In Smith, the defendant filed a section 2-1401 petition for relief from judgment. Before summarily dismissing the petition, the trial court recharacterized the filing as a successive postconviction petition. This court vacated the dismissal and remanded with instructions to allow the defendant the opportunity to amend or withdraw the petition. Smith, 383 Ill.App.3d at 1084, 322 Ill.Dec. 808, 892 N.E.2d 55. The defendant appeared before the court, chose to amend the petition, and provided an amended petition at that time. The defendant also sought and received clarification on the crime for which she was convicted and the accountability theory upon which her conviction was based. The trial court subsequently entered an order denying leave to file the postconviction petition for failure to satisfy the cause-and-prejudice test. Smith, 383 Ill.App.3d at 1081-82, 322 Ill.Dec. 808, 892 N.E.2d 55.
On appeal, this court discussed the holdings in LaPointe and DeBerry, relied on here by the State, and found that they presented a different procedural posture. Smith, 383 Ill.App.3d at 1083-84, 322 Ill.Dec. 808, 892 N.E.2d 55. While the defendant did not seek leave to file her petition, we found that the trial court's order after remand implicitly acknowledged a request for leave by the defendant. Therefore, we determined that the requirement of section 122-1(f) was met before the trial court denied leave for failure to show cause and prejudice. Smith, 383 Ill.App.3d at 1084, 322 Ill.Dec. 808, 892 N.E.2d 55. Defendant contends that, as in Smith, he originally filed a section 2-1401 petition that was recharacterized by the trial court with an order admonishing him that he may amend or withdraw the petition. Therefore he concludes that the trial court's order implicitly acknowledged his request for leave and his claim of actual innocence must continue.
Defendant also argues that, while section 122-1(f) does not discuss claims of actual innocence, the bar against successive postconviction petitions is excused when actual innocence can be shown. People v. Pitsonbarger, 205 Ill.2d 444, 456, 275 Ill.Dec. 838, 793 N.E.2d 609 (2002). He contends that our supreme court's recent decision in People v. Ortiz, 235 Ill.2d 319, 336 Ill.Dec. 16, 919 N.E.2d 941 (2009), expanded on the Pitsonbarger holding. Defendant contends that the State's argument here cannot stand following Ortiz and we must accept his argument that the dismissal of his postconviction petition must be reversed.
In Ortiz, the defendant alleged actual innocence in each of three successive postconviction petitions. In his third successive postconviction petition, the defendant based his claim on testimony provided in his second postconviction petition as well as newly discovered evidence from two affidavits provided by additional, recently discovered eyewitnesses. The trial court found that the repeated testimony was barred under the doctrine of res judicata, but held a third-stage hearing on the allegedly newly discovered eyewitness testimony. One witness testified at the hearing that he was scared to talk to the police initially because of repercussions from his gang and that he moved to Wisconsin soon after the shooting. Over 10 years later he finally provided testimony in his affidavit to assuage his guilt and “get it off his chest.” He testified that he knew the defendant as another member of his gang and did not see the defendant the night of the shooting. He also testified that he saw other members of their gang initially beat the victim and later chase and shoot at the victim. Ortiz, 235 Ill.2d at 327, 336 Ill.Dec. 16, 919 N.E.2d 941.
The trial court considered the testimony and found it insufficient to warrant a new trial as two eyewitnesses at trial identified the defendant as the shooter. The trial court opined that the newly discovered evidence was cumulative and, at trial, the eyewitnesses were determined credible and therefore the defendant did not satisfy the cause-and-prejudice test to advance his successive petition. On appeal, this court reversed, finding that the defendant set forth a claim of actual innocence and, consistent with People v. Pitsonbarger, 205 Ill.2d 444, 459, 275 Ill.Dec. 838, 793 N.E.2d 609 (2002), was excused from satisfying the cause-and-prejudice test. People v. Ortiz, 385 Ill.App.3d 1, 10-13, 324 Ill.Dec. 715, 896 N.E.2d 791 (2008).
The supreme court affirmed this holding. The court reasoned that, in light of Pitsonbarger, a defendant who sets forth a claim of actual innocence is excused from having to satisfy the cause-and-prejudice test. The court specifically rejected the State's claim that all successive postconviction petitions are subject to that test under the plain language of the Act. Ortiz, 235 Ill.2d at 330, 336 Ill.Dec. 16, 919 N.E.2d 941. The court also found the State's fears of unlimited “piecemeal” petitions couched in terms of actual innocence were unfounded because the preclusion doctrines of res judicata, collateral estoppel and law of the case would remain to preclude petitions that did not support a “new ‘claim.’ ” Ortiz, 235 Ill.2d at 333, 336 Ill.Dec. 16, 919 N.E.2d 941.
Defendant's claim was considered new as it was based on newly discovered evidence-a first-person account exculpating the defendant-that directly contradicted eyewitness statements made at trial. The Ortiz court found that the trial court's conclusion that this testimony was cumulative was manifestly erroneous. Because there was no physical evidence tying the defendant to the shooting and the new testimony contradicted the State's trial witnesses' testimony, the Ortiz court found it was so conclusive it would probably change the result of the trial. Ortiz, 235 Ill.2d at 336, 336 ill.Dec. 16, 919 N.E.2d 941. Accordingly, the court remanded the case for a new trial. Defendant extends this conclusion to the instant case, arguing that it is incongruous to dismiss a petition under a procedural bar when the Ortiz court, citing to constitutional concerns, rejected application of the substantive cause-and-prejudice test.
We agree with defendant that the trial court's reliance on the cause-and-prejudice test was erroneous. However, the holdings in LaPointe, DeBerry, Wyles, Daniel, Spivey, and Shipp compel us to affirm the instant dismissal. We do so based solely on defendant's failure to seek leave of court to file a successive postconviction petition as required by section 122-1(f) of the Act.
Defendant's principal case, Smith, is distinguishable from the instant matter based on defendant's failure to seek and receive leave to file the petition. In Smith, we found that the trial court's order implicitly acknowledged a request for leave and the defendant actively pursued her successive postconviction petition. In this case, there is no similar implicit acknowledgment or action by defendant. Following admonishment of the trial court's recharacterization of the pleading as a postconviction petition, defendant chose to follow the trial court's third option in her Shellstrom admonishment-to do nothing. This choice is clearly different than actively amending a petition as was done in Smith.
Further support for distinguishing this case from Smith may be found in the recent decision by this court in People v. Collier, 387 Ill.App.3d 630, 326 Ill.Dec. 760, 900 N.E.2d 396 (2008). Collier also involved a pro se petition filed pursuant to section 2-1401 that was recharacterized as a successive postconviction petition. Shellstrom admonishments were administered to the defendant and he elected to amend his petition. The Collier court first noted that consideration of the merits of a petition cannot be construed as implicit acknowledgment that the requirements of section 122-1(f) were met. Collier, 387 Ill.App.3d at 636, 326 Ill.Dec. 760, 900 N.E.2d 396, citing Spivey, 377 Ill.App.3d at 149-50, 316 Ill.Dec. 324, 879 N.E.2d 391. However, the court found that the procedural history of the case warranted relaxation of the requirement to file a motion for leave to file and “[b]y granting defendant's request to amend the petition, here, as in Smith, the trial court implicitly acknowledged a request for leave to file and thus fulfilled the requirements of section 122-1(f).” Collier, 387 Ill.App.3d at 635-36, 326 Ill.Dec. 760, 900 N.E.2d 396. While defendant argues that this holding supports his position, we believe that for purposes of this case, it is crucial to note that the court also stated that a valid claim of innocence may overcome procedural hurdles, but even an allegation of innocence “must be raised within the framework of an avenue providing relief.” Collier, 387 Ill.App.3d at 636, 326 Ill.Dec. 760, 900 N.E.2d 396, citing People v. Washington, 171 Ill.2d 475, 489, 216 Ill.Dec. 773, 665 N.E.2d 1330 (1996).
In the instant matter, the trial court properly admonished defendant and warned that the petition would be subject to the restrictions pertaining to successive postconviction petitions. We agree with defendant that the trial court's use of “subsequent” in its admonishment could lead to confusion as to whether the instant petition would be subject to the restrictions of the Act, but hold it was sufficient to put defendant on notice. Not only did defendant fail to file an amended petition, unlike the defendants in Smith and Collier who filed amended petitions, defendant failed to do anything and there was no action taken by defendant which would lead us to conclude that the trial court implicitly granted leave to file. Indeed, the trial court clearly denied leave to file by stating that it was denying leave to file in the title of its order. Under Spivey, rejection of the petition for failure to satisfy the cause-and-prejudice test does not lead to the conclusion that defendant met the requirements of section 122-1(f).
Consequently, we find that dismissal was proper under section 122-1(f) and LaPointe and the line of cases cited above. We note that our affirmance does not preclude defendant from filing a motion in the circuit court seeking leave to file a successive postconviction petition which presents the same information contained in defendant's current request for collateral relief. Should the defendant do so, the trial court will review the petition in light of the holding in People v. Ortiz, 235 Ill.2d 319, 336 Ill.Dec. 16, 919 N.E.2d 941 (2009).
We also note that, if a defendant's section 2-1401 petition is recharacterized under Shellstrom, it may be considered a better practice for the trial court to explicitly admonish the defendant that, if the defendant wishes the court to consider the section 2-1401 petition as a successive postconviction petition, section 122-1(f) requires a motion for leave to file a successive petition. Pursuant to section 122-1(f), in a motion seeking leave to file a successive postconviction petition under the Act, a defendant must explain why leave is appropriate based on newly acquired evidence that is material and not cumulative. If the claim shows actual innocence and it is not frivolous or without merit, Ortiz holds that it is not subject to the cause-and-prejudice test and requires that it advance to the second stage of review under the Act. If the defendant does not set forth a claim of actual innocence, it must satisfy the cause-and-prejudice test. Because defendant failed to comply with the important procedural requirements of the Act, we need not consider his petition on the merits, and affirm its dismissal without prejudice.
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the trial court.
Affirmed.
Presiding Justice MURPHY delivered the opinion of the court:
QUINN and COLEMAN, JJ., concur.
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Docket No: No. 1-07-1245.
Decided: January 13, 2010
Court: Appellate Court of Illinois,First District, Third Division.
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