NOTICE 2024 IL App (5th) 231347-U NOTICE Decision filed 09/17/24. The This order was filed under text of this decision may be NO. 5-23-1347 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). 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. 14-CF-733 ) TERRELL A. ADAMS, ) Honorable ) Jeffrey S. Geisler, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Justices Barberis and Sholar concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in dismissing the defendant’s second postconviction petition, where he cannot make a showing of either cause and prejudice or actual innocence. As any arguments 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 Terrell A. Adams was sentenced to six years in the Illinois Department of
Corrections (IDOC) and ordered to register as a sex offender for life for the offense of predatory
criminal sexual assault of a child. He appeals from the dismissal of his second pro se
postconviction petition. Adams’s appointed attorney in this appeal, the Office of the State
Appellate Defender (OSAD), has concluded that this appeal lacks substantial merit. On that basis,
OSAD has filed a motion to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551
(1987), along with a memorandum of law in support of that motion.
1 ¶3 OSAD gave proper notice to Adams. This court gave him an opportunity to file a pro se
brief, memorandum, or other document explaining why OSAD should not be allowed to withdraw
as counsel, or why this appeal has merit, but Adams has not done so. This court has examined
OSAD’s Finley motion and the accompanying memorandum of law, as well as the entire record
on appeal, and has concluded that this appeal does indeed lack merit. Accordingly, OSAD is
granted leave to withdraw as counsel, and the judgment of the circuit court is affirmed.
¶4 I. BACKGROUND
¶5 A. First Postconviction Petition
¶6 Adams was charged with predatory criminal sexual assault of a child and entered into a
negotiated guilty plea in December of 2014. Pursuant to the plea agreement, he was sentenced to
six years in IDOC and required to register as a sex offender for life. In March of 2015, Adams
filed a pro se motion to withdraw his guilty plea and vacate the judgment, alleging ineffective
assistance of counsel. At the hearing on his motion, the State argued that the motion was untimely,
having been filed more than 30 days after the entry of the guilty plea. Upon the instructions of the
circuit court, the State filed a motion to dismiss in December 2015. The court granted the State’s
motion. In February of 2016, Adams filed a pro se motion for leave to file a late notice of appeal,
which the court also denied, on the basis that it had lost jurisdiction over the matter.
¶7 In June 2016, Adams filed his first pro se postconviction petition, alleging, inter alia, that
plea counsel rendered ineffective assistance in several ways, including: failing to investigate the
allegations against him and the evidence important to his defense, failing to raise the argument that
the DNA evidence in this matter was inaccurate and misleading, not stepping down as counsel
when requested to do so, and failing to withdraw Adams’s plea when requested to do so on the day
of the plea. He also claimed that the public defender’s office sent him a letter on December 23,
2 2015, which incorrectly stated that the court ruled in his favor on his motion to withdraw the plea;
the office sent another letter on January 29, 2016, informing him of the error, and that the motion
had been denied. The second letter did not provide the basis for the denial. Adams argued that this
deprived him of his right to appeal.
¶8 Adams included various attachments with his petition, including the aforementioned letters
from the public defender’s office, and copies of the DNA lab reports. The lab reports, dated May
and June of 2014, indicated that five items of clothing were submitted for testing, but only one
was examined. On that item, the lab identified semen in two locations. On one location, the lab
found a mixture of male and female DNA profiles, with the male profile matching Adams. The
second location was not examined. The circuit court found this petition stated the gist of a claim
and appointed the public defender to represent Adams.
¶9 Adams’s appointed counsel filed an amended postconviction petition in February of 2017,
raising two primary claims. Firstly, he argued that trial counsel provided ineffective assistance
such that Adams’s case would have proceeded to trial if not for counsel’s (1) failure to investigate
alibi witnesses; (2) lack of preparedness for trial; (3) failure to disclose the contents of the DNA
reports to Adams, which showed that a mixture of DNA was found and several items were not
tested; and (4) failure to file a motion to withdraw the guilty plea at Adams’s request. Secondly,
Adams would have timely appealed the dismissal of his motion to withdraw his plea and vacate
his sentence, were it not for posttrial counsel’s ineffective assistance by incorrectly informing him
that the State’s motion to dismiss was denied, and failing to inform him that immediate action was
necessary to preserve his right to appeal.
¶ 10 The public defender attached documentation of Adams’s attempts to discuss alibi witnesses
with plea counsel, plea counsel’s request for a continuance on the trial date stating that he was not
3 ready for trial for personal reasons, and letters from the public defender’s office showing the
incorrect information about the State’s motion being dismissed. He also filed a certificate asserting
compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017).
¶ 11 In March of 2017, the State filed a motion to dismiss the amended postconviction petition.
It argued that the petition lacked a sufficient factual basis for the claim that trial counsel was
ineffective by failing to investigate witnesses, and that Adams could not show that the result of his
case would have been different but for that failure. The State further argued that Adams’s
remaining claims were similarly conclusory, and that he could not establish prejudice. The State
specifically added that Adams had not shown any prejudice resulting from counsel’s failure to file
a motion to withdraw the plea. It also argued that Adams’s pro se motion to withdraw his plea and
vacate his sentence was untimely, and his opportunity to appeal its dismissal was not affected by
posttrial counsel’s mistake in informing him of the outcome of his motion.
¶ 12 At the second-stage hearing on the amended petition, the State also argued that Adams
could not show that he had a sufficient basis for a motion to withdraw his plea, or that any such
timely motion would have been granted. Defense counsel responded that Adams was claiming that
he was deceived into making his plea, and his plea was the result of his attorney’s unpreparedness
for trial. Therefore, he argued, his claim stated a constitutional violation sufficient to proceed to
the next stage of the postconviction proceedings. He further contended that although Adams’s
pro se motion was untimely, he could have still appealed its denial had he been properly informed
of the outcome.
¶ 13 The circuit court stated that it had reviewed the transcript of the plea, and the transcript
showed that Adams was properly given the admonitions pursuant to Illinois Supreme Court Rule
402 (eff. July 1, 2012) and answered only yes or no; he never told the court that he had any
4 concerns or was under duress. The court further found that the transcript refuted the defense’s
claims that his attorney was not prepared for trial. Thus, the court granted the State’s motion to
dismiss Adams’s amended postconviction petition.
¶ 14 B. First Appeal
¶ 15 Adams appealed, arguing that his first appointed postconviction counsel 1 did not render
reasonable assistance pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) in
amending his petition, because he failed to provide support for the conclusory allegations. People
v. Adams, 2020 IL App (4th) 180679-U, ¶ 16. He also argued that successive postconviction
counsel failed to reamend the petition to address the State’s arguments in its motion to dismiss,
and that this attorney could not adopt the Rule 651(c) certificate filed by prior counsel. Id. ¶¶ 16,
27.
¶ 16 The Fourth District affirmed the circuit court’s dismissal of his petition. The court’s
decision noted that postconviction counsel filed a facially compliant Rule 651(c) certificate, which
created a presumption that counsel provided reasonable assistance. Id. ¶ 20 (citing People v.
Custer, 2019 IL 123339, ¶ 32). The defendant bore the burden of rebutting this presumption “by
demonstrating his attorney’s failure to substantially comply with the duties mandated by Rule
651(c).” People v. Profit, 2012 IL App (1st) 101307, ¶ 19. In this case, the court found that there
were no facts to support the defendant’s conclusory allegations at the second-stage postconviction
hearing, and furthermore, given the presumption of compliance per Rule 651(c), it must be
presumed that even after consulting with Adams, counsel had no facts to add. Adams, 2020 IL App
(4th) 180679-U, ¶ 21. The court also found no support for Adams’s argument that successive
1 At the second-stage postconviction hearing, Adams was represented by a different public defender than the one who filed the amended petition. 5 postconviction counsel could not adopt the Rule 651(c) certificate filed by prior counsel, and that
every individual attorney at the public defender’s office who had any involvement with his
postconviction case was required to file his or her own certificate. Id. ¶ 27.
¶ 17 The court also made specific findings that Adams had failed to show any facts supporting
his allegations of ineffective assistance of trial counsel, namely (1) that there were any alibi
witnesses for trial counsel to investigate, (2) that trial counsel was in any way unprepared for trial,
(3) that trial counsel failed to disclose DNA information, or (4) “that there was any legitimate basis
for withdrawing his plea, let alone why or how that somehow prejudiced defendant, who ultimately
entered a plea of guilty to the minimum statutory sentence.” Id. ¶ 25. Regarding Adams’s claims
of ineffective assistance by successive postconviction counsel for failing to reamend his petition
to respond to the State’s motion, the court concluded that Adams did not identify any facts that
were available to defeat the State’s arguments. Id. Therefore, the failure to further amend the pro se
petition did not constitute inadequate representation where Adams could neither show that this
failure resulted in any significant omissions nor suggest how the petition should have been
amended. Id. (citing People v. Marshall, 375 Ill. App. 3d 670, 682 (2007)).
¶ 18 C. Second Postconviction Petition
¶ 19 On September 6, 2023, Adams filed a second pro se postconviction petition, alleging
violations of his constitutional rights under the first, fourth, sixth, eighth, and fourteenth
amendments. His overarching argument was again ineffective assistance of counsel, and he raised
the following allegations: (1) that not all the DNA samples were tested, (2) that every public
defender assigned to his case had prior knowledge of the DNA results and did not inform Adams,
and (3) that the circuit court acknowledged that ineffective assistance occurred but was not
presented correctly.
6 ¶ 20 In support, he argued (1) that he was entitled to reversal of his conviction without needing
to show prejudice, because he had “suffer[ed] a complete absence of the statutory right to counsel”;
(2) the circuit court erred in dismissing his first postconviction petition on the basis that he failed
to allege that he asked his attorney to withdraw his plea or appeal, because he was not required to
do either in order to pursue postconviction relief; (3) that, regardless of the prior point, he told trial
counsel in person and by mail to file a motion to withdraw his guilty plea, and counsel did not do
so; and (4) that, specifically because of the various issues relating to the inconsistencies in and
disclosure of the DNA evidence, he was deprived of the right to a fair trial, to effective counsel,
and to know the evidence against him.
¶ 21 In November 2023, the circuit court issued a written order dismissing Adams’s petition.
The court summarized the procedural history, noting that Adams had already filed one
postconviction petition, and a second petition may only be filed upon a showing of cause and
prejudice or actual innocence. The court found that Adams established neither cause nor prejudice,
having failed to show any objective factor impeding his ability to raise a specific claim, or that the
sentence violated due process. It further found that he had already raised the issues involving the
DNA reports before the appellate court.
¶ 22 D. The Present Appeal
¶ 23 On December 22, 2023, Adams appealed, pro se, from the order denying his second
postconviction petition. In his pro se notice of appeal, he reasserted the claims he made in his
second petition. He also argued that he was not challenging his sentence, but rather the DNA
evidence, the ineffective assistance of counsel, and the withdrawal of his guilty plea. He further
contended that due process permits him to raise a freestanding claim of actual innocence based on
newly discovered evidence; that his claim of ineffective assistance had not been presented
7 correctly in his first petition, and was therefore not waived as having been available but not raised
in a prior petition; and that he was prejudiced by the deprivation of his liberty based on the
“poorness and unfairness” of the evidence and the ineffective assistance of counsel at every stage
of the underlying proceedings.
¶ 24 OSAD was subsequently appointed to represent Adams, and we granted OSAD’s motion
for leave to file a late notice of appeal. OSAD now moves to withdraw as appellate counsel.
¶ 25 II. ANALYSIS
¶ 26 OSAD argues that dismissal of the petition was proper, and there are no meritorious
arguments to the contrary. In the memorandum supporting its Finley motion to withdraw as
counsel, OSAD reviews the two potential conditions under which the circuit court’s denial of
Adams’s second postconviction petition would have been in error: (1) if he had pled and satisfied
the cause and prejudice test; and (2) if he had alleged actual innocence. As neither of these
situations applies to the facts in this case, we agree with OSAD that this potential issue is without
merit.
¶ 27 A. The Post-Conviction Hearing Act
¶ 28 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)) provides
a statutory remedy to criminal defendants who claim that substantial violations of their
constitutional rights occurred at trial. People v. Taliani, 2021 IL 125891, ¶ 53; People v. Edwards,
2012 IL 111711, ¶ 21. A postconviction petition is a collateral attack on the judgment, the purpose
of which is to “ ‘allow inquiry into constitutional issues relating to the conviction or sentence that
were not, and could not have been, determined on direct appeal.’ ” People v. Clark, 2023 IL
127273, ¶ 38 (quoting People v. Barrow, 195 Ill. 2d 506, 519 (2001)). Therefore, “issues that were
raised and decided on direct appeal are barred from consideration by the doctrine of res judicata,
8 while issues that could have been raised, but were not, are forfeited.” Taliani, 2021 IL 125891,
¶ 53 (citing People v. Holman, 2017 IL 120655, ¶ 25).
¶ 29 Furthermore, the Act contemplates the filing of only one postconviction petition, and
prohibits the filing of a successive petition without first obtaining leave of court to do so. 725 ILCS
5/122-1(f) (West 2022); see also People v. Tidwell, 236 Ill. 2d 150, 157 (2010). The defendant
waives any claim not raised in his original or amended postconviction petition. Taliani, 2021 IL
125891, ¶ 53 (citing Holman, 2017 IL 120655, ¶ 25); 725 ILCS 5/122-3 (West 2022).
¶ 30 Our courts recognize two exceptions to the rule against successive postconviction petitions.
Id. ¶ 55. The first, referred to as the cause and prejudice exception, has been codified in the Act.
Section 122-1(f) of the Act states:
“(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 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 2022).
A defendant invoking this exception must submit enough evidence to allow the circuit court to
make a cause and prejudice determination. See People v. Bailey, 2017 IL 121450, ¶ 21; Tidwell,
236 Ill. 2d at 161.
¶ 31 If the defendant does not show cause and prejudice, his failure to raise a claim in a prior
petition will be excused where necessary to prevent a fundamental miscarriage of justice. People
v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). To establish such a miscarriage of justice, the
defendant must set forth a colorable claim of actual innocence. Id.; see also Taliani, 2021 IL
125891, ¶ 55. Evidence supporting a claim of actual innocence must be “(1) newly discovered,
9 (2) material and not cumulative, and (3) of such conclusive character that it would probably change
the result on retrial.” People v. Robinson, 2020 IL 123849, ¶ 47.
¶ 32 Because the sufficiency of a postconviction petition is a purely legal question, we review
the circuit court’s denial of a defendant’s motion for leave to file a successive postconviction
petition de novo. Id. ¶ 39. Our Illinois Supreme Court has further held that the denial of a motion
for leave to file a successive petition alleging cause and prejudice is reviewed de novo. Id. (citing
People v. Wrice, 2012 IL 111860, ¶¶ 49-50).
¶ 33 B. Cause and Prejudice Test
¶ 34 We begin our review by noting that Adams did not specifically request leave of court to
file a second postconviction petition, and a successive petition is not deemed filed until leave is
granted. Tidwell, 236 Ill. 2d at 161. While a defendant need not file a separate motion or explicitly
request permission to file the successive petition, “it is still defendant’s burden to obtain leave, and
he must submit enough in the way of documentation to allow a circuit court to make that
determination.” Id.
¶ 35 Having reviewed the procedural history, we find that Adams has failed to identify any
objective factor that impeded him from raising any of the issues in his second petition during his
initial postconviction proceedings. In his second petition, he argues that he was not informed of
the full results of the DNA report, including that not all of the items were tested. He raises the
same contentions regarding the DNA evidence that he raised under the theory of ineffective
assistance of counsel in his first petition. Similarly, both petitions contain claims of trial counsel’s
failure to move to withdraw the plea at Adams’s request. Our Illinois Supreme Court has held that
a defendant cannot satisfy the first prong of the cause and prejudice test “when he did, in fact, raise
the specific claim he seeks to raise again in his successive petition. ‘There can be no cause for
10 failing to raise a claim in the initial proceeding when the claim was, in fact, raised in that
proceeding.’ ” People v. Montanez, 2023 IL 128740, ¶ 106 (quoting People v. Conway, 2019 IL
App (2d) 170196, ¶ 25).
¶ 36 To the extent that he attempts to differentiate the claims of his first and second petitions,
by, for example, now alleging that the errors regarding the DNA reports were an unconstitutional
deprivation of his liberty interest by the State, we find that the underlying facts remain the same.
These facts were available to him—and, indeed, raised by him—during the filing of his initial
petition. Rewording the claims or altering the theory is insufficient to demonstrate cause.
¶ 37 A defendant must satisfy both prongs of the cause and prejudice test in order to show that
a successive postconviction petition is warranted. People v. Guerrero, 2012 IL 112020, ¶ 15 (citing
Pitsonbarger, 205 Ill. 2d at 464). However, we find that Adams is also unable to establish
prejudice. In the underlying case, Adams entered into a fully negotiated guilty plea. Based on the
arguments he has raised, the alleged grounds for prejudice would be that he did not make a
knowing and voluntary plea because counsel did not inform him or raise in his defense that the
DNA report was inconclusive, that only one item was tested, that there was additional semen found
that was not tested, that the DNA results were inconclusive, and that the DNA match to him did
not mean he committed the offense.
¶ 38 In order to establish that he was prejudiced by counsel’s decision, Adams would have to
overcome the strong presumption that counsel’s representation was sound strategy and
professional judgment. People v. Edwards, 2012 IL App (1st) 091651, ¶¶ 30-31. Notably, the DNA
reports did not conflict with the State’s factual basis for a finding of guilt, where the tested semen
contained a mixture of female DNA and male DNA matching Adams’s profile. Therefore, we find
11 that there is no meritorious argument to be made for allowing a successive postconviction petition
under the cause and prejudice test.
¶ 39 C. Actual Innocence
¶ 40 In order to show a fundamental miscarriage of justice based on actual innocence, the
defendant must present new, non-cumulative evidence “rais[ing] the probability that it is more
likely than not that no reasonable juror would have convicted the [defendant] in light of the new
evidence.” Robinson, 2020 IL 123849, ¶ 44. At no point in the history of these proceedings has
Adams presented a claim of actual innocence, although on appeal he argues that he is allowed to
raise a freestanding claim of actual innocence based on newly discovered evidence.
¶ 41 Regardless, he does not actually raise any newly discovered evidence. Even if he was not
aware of the full DNA lab reports until after his guilty plea, he has already raised this issue in his
first postconviction petition, and at no point has he presented sufficient facts and authority to show
that the DNA results were conclusive enough to “probably change the result on retrial.” Id. ¶ 47.
Furthermore, for the reasons we discussed in the previous section, he would not be able to do so.
¶ 42 Therefore, we find that there is no meritorious argument that the circuit court should have
allowed the second postconviction petition based on a showing of actual innocence.
¶ 43 III. CONCLUSION
¶ 44 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
affirm the circuit court’s judgment.
¶ 45 Motion granted; judgment affirmed.