People v. Brown

2022 IL App (4th) 210222-U

Opinion

NOTICE This Order was filed under 2022 IL App (4th) 210222-U FILED Supreme Court Rule 23 and is June 23, 2022 not precedent except in the Carla Bender limited circumstances allowed NO. 4-21-0222 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County WOODROW A. BROWN, ) No. 13CF1557 Defendant-Appellant. ) ) Honorable ) Roger B. Webber, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Presiding Justice Knecht and Justice Harris concurred in the judgment.

ORDER

¶1 Held: The circuit court erred by treating defendant’s second postconviction petition as a successive postconviction petition where the first petition was filed without defendant’s knowledge and authorization.

¶2 In June 2018, a postconviction petition was filed on behalf of defendant,

Woodrow A. Brown. The Champaign County circuit court dismissed the postconviction petition

as frivolous and patently without merit. Defendant filed a joint motion to vacate the void

judgment and for reconsideration, asserting he did not file the postconviction petition and did not

authorize the filing of it. The State filed a motion to strike defendant’s postjudgment motion.

After a September 2018 hearing, the court denied all the motions and noted its June 2018

dismissal of defendant’s postconviction petition remained in full force and effect. Defendant did

not appeal the court’s dismissal.

¶3 In January 2020, defendant filed a pro se postconviction petition and provided evidence the June 2018 petition was not filed by him. The circuit court treated the petition as a

successive postconviction petition and denied defendant leave to file the successive petition

because defendant failed to adequately allege prejudice.

¶4 Defendant appeals the denial, contending (1) the circuit court should have treated

his January 2020 postconviction petition as an initial postconviction petition and, (2) in the

alternative, his successive postconviction petition did establish prejudice. We reverse and

remand for further proceedings.

¶5 I. BACKGROUND

¶6 In September 2013, the State charged defendant by information with one count of

aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2012)), one count of

aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2012)), and one count of

reckless discharge of a firearm (720 ILCS 5/24-1.5(a) (West 2012)). Those charges relate to an

incident on September 18, 2013, in which defendant shot Dyvar Johnson, the brother of his

girlfriend, Unique Ayers, at the apartment they all shared. Defendant raised the affirmative

defense of self-defense. Before trial, the circuit court dismissed the reckless discharge of a

firearm charge at the State’s request.

¶7 After a November 2014 trial, the jury found defendant guilty of the two remaining

charges. Defendant filed a motion for a new trial. At a joint January 2015 hearing, the circuit

court denied defendant’s motion for a new trial and sentenced defendant to 30 years’

imprisonment for aggravated battery with a firearm. Defendant appealed, contending he was

denied effective assistance of counsel and challenging the imposition of certain fines and the

failure to receive credit against other fines. This court affirmed the circuit court’s judgment but

remanded the cause for the circuit court to address defendant’s fines and credit issues. People v.

-2- Brown, 2017 IL App (4th) 150154-U, ¶ 37.

¶8 On June 13, 2018, a certification for exemption from e-filing and a postconviction

petition were filed in defendant’s name and purportedly signed by defendant. The envelope for

the documents is included in the record on appeal. The return address on the envelope listed

Mount Sterling, Illinois, as defendant’s city of residence, and so did the documents. However,

the postage stated it was paid in Urbana, Illinois. On June 18, 2018, the circuit court summarily

dismissed the petition as frivolous and patently without merit.

¶9 On July 16, 2018, defendant filed pro se a joint motion to vacate a void judgment

and a motion for reconsideration. Defendant asserted he did not file the postconviction petition

and only gave John Marshall Law School authorization to file a postconviction petition on his

behalf. He requested the June 2018 petition be vacated and withdrawn without prejudice. He

also asked for an extension of the deadline for filing an initial postconviction petition to rectify

the situation. Defendant attached his affidavit to the motion, which again noted he only gave

permission to John Marshall Law School to file a postconviction petition and the June 2018

petition was not filed by himself or the law school. In August 2018, the State filed a motion to

strike defendant’s postjudgment motion.

¶ 10 On September 11, 2018, the circuit court held a hearing on the pending motions.

Defendant was pro se at the hearing. Defendant asked for counsel, and the court denied

defendant’s request. Defendant stated the June 2018 petition was filed by Anne Ogwal and he

did not tell her to file it. The court told defendant the following:

“The relief that I think you might be most entitled to seek is to file a

subsequent post-conviction petition, and allege in that that you have not filed or

previously filed a petition, or authorized anyone to file on your behalf. And if and

-3- when you do that, then we would have a contested hearing. I could probably

appoint counsel for you at that time, although if people from the John Marshall

Legal Clinic are helping you, then they could appear on your behalf, or we could

look at counsel, if a subsequent petition gets filed on your behalf.

Now if you do that, it’s very possible and likely that the State’s going to

file a motion to dismiss because you’ve already filed one and you didn’t meet all

the criteria from the second one, but you would be given a chance to respond to

that, and you could certainly say, I didn’t file the first one, which would create a

question of fact we’d have to have a hearing to resolve.”

Defendant then asked the court to confirm he was still able to file an original postconviction

petition, and the court stated, “Right.” The court further told defendant to state in his

postconviction petition why it is late. Defendant indicated he wanted the June 2018

postconviction petition dismissed from the record. The court responded it did not think it had the

authority to vacate the June 2018 petition and noted it would probably appoint defendant counsel

on another postconviction petition to help defendant prove he did not file the June 2018 petition.

The court concluded the hearing by denying defendant’s joint motion and the State’s motion to

strike. It noted the prior order dismissing the June 2018 postconviction petition still stood.

¶ 11 On January 17, 2020, defendant filed a pro se petition for postconviction relief, in

which he asserted the petition was past the due date because of circumstances out of defendant’s

control. Specifically, defendant argued a postconviction petition was filed by Ogwal without his

consent. The document was not signed by him and was not mailed from his address. Defendant

also attached Ogwal’s affidavit to the petition, in which she stated she filed the June 2018

postconviction petition on her own volition and did not have defendant’s consent. Other

-4- attachments included correspondence from John Marshall Law School about defendant’s case.

Additionally, defendant noted he did not learn John Marshall Law School was not handling his

postconviction petition until October 2019. In his postconviction petition, defendant alleged he

was denied effective assistance of counsel because defense counsel failed to (1) investigate

Detective David Roesch’s recorded interview of defendant and (2) obtain and present

information about Johnson’s reputation of having a violent nature.

¶ 12 On March 31, 2021, the circuit court entered a written order, treating defendant’s

January 2020 postconviction petition as a successive postconviction petition and denying

defendant leave to file the January 2020 petition. The court found defendant had established

cause based on Ogwal’s filing the January 2018 petition without his consent but found defendant

failed to adequately allege prejudice.

¶ 13 On April 15, 2021, defendant timely filed a notice of appeal in sufficient

compliance with Illinois Supreme Court Rule 606 (eff. Mar. 21, 2021). See Ill. S. Ct. R. 651(d)

(eff. July 1, 2017) (providing the procedure for appeals in postconviction proceedings is in

accordance with the rules governing criminal appeals). Thus, we have jurisdiction of

defendant’s appeal under Illinois Supreme Court Rule 651(a) (eff. July 1, 2017).

¶ 14 II. ANALYSIS

¶ 15 Defendant first contends his January 2020 postconviction petition was an original

postconviction petition and not a successive one. The State disagrees and asserts the circuit court

properly treated the January 2020 petition as a successive postconviction petition. We review

de novo whether the circuit court erred in treating defendant’s January 2020 petition as a

successive petition for purposes of the Post-Conviction Hearing Act (Postconviction Act) (725

ILCS 5/122-1 et seq. (West 2020)). People v. Taylor, 2022 IL App (2d) 190951, ¶ 17. This

-5- court also reviews de novo the denial of a request for leave to file a successive postconviction

petition. See People v. Gillespie, 407 Ill. App. 3d 113, 124, 941 N.E.2d 441, 452 (2010).

¶ 16 Both parties address the recent appellate court decision in Taylor, 2022 IL App

(2d) 190951. There, the reviewing court first found the circuit court improperly treated the

defendant’s second postconviction petition as a successive postconviction petition because the

circuit court improperly dismissed the first postconviction on the ground of mootness, which did

not fall under the definition of frivolous or patently without merit. However, contrary to the

State’s argument, the Taylor court further found that, even if it associated mootness with being

frivolous or patently without merit, it would not conclude the defendant’s second postconviction

petition was a successive petition requiring leave of court to file. Taylor, 2022 IL App (2d)

190951, ¶ 25. In this case, the circuit court did dismiss the June 2018 petition on the basis it was

frivolous and patently without merit, and thus we only consider the Taylor court’s second reason

for finding the defendant’s second petition was not a successive one.

¶ 17 As to its second reason for finding the second postconviction petition was not a

successive one, the Taylor court found People v. Sawczenko, 328 Ill. App. 3d 888, 767 N.E.2d

519 (2002), instructive. Taylor, 2022 IL App (2d) 190951, ¶ 25. In Sawczenko, 328 Ill. App. 3d

at 890-91, 767 N.E.2d at 522, the defendant filed a petition for postconviction relief in

September 1997. The petition advanced to the second stage, and the circuit court appointed

counsel, who filed an amended postconviction petition. Sawczenko, 328 Ill. App. 3d at 891, 767

N.E.2d at 522. The State first filed a motion to dismiss the postconviction petition, which the

court denied, and then filed an answer. Sawczenko, 328 Ill. App. 3d at 891, 767 N.E.2d at 522.

When the parties next appeared before the circuit court, the defendant’s postconviction counsel

advised the court the defendant wished to withdraw his petition based on religious beliefs and

-6- some research he had done. Sawczenko, 328 Ill. App. 3d at 891, 767 N.E.2d at 522. The circuit

court granted the withdrawal after extensively admonishing the defendant about the

consequences of withdrawing a postconviction petition. Sawczenko, 328 Ill. App. 3d at 891, 767

N.E.2d at 523. Over one year after withdrawing the September 1997 petition, the defendant filed

another petition for postconviction relief in August 2000. Sawczenko, 328 Ill. App. 3d at 891,

767 N.E.2d at 523. At a hearing, the defendant made clear he wished to reinstate the allegations

he made in the September 1997 petition and raise additional issues in a supplemental petition.

Sawczenko, 328 Ill. App. 3d at 892, 767 N.E.2d at 523. In a written order, the circuit court found

the defendant’s August 2000 petition to be “ ‘frivolous and patently without merit.’ ”

Sawczenko, 328 Ill. App. 3d at 892, 767 N.E.2d at 523.

¶ 18 On appeal, the reviewing court in Sawczenko considered whether the dismissal of

the August 2000 petition could be affirmed on the ground the petition was “an improper

successive postconviction petition,” which was not a ground found by the circuit court.

Sawczenko, 328 Ill. App. 3d at 897, 767 N.E.2d at 527. The Sawczenko court concluded it could

not. Sawczenko, 328 Ill. App. 3d at 897, 767 N.E.2d at 528. It noted the Postconviction “Act

contemplates the filing of one petition,” and “[a defendant] is to get one complete opportunity to

show that his constitutional rights were substantially denied.” Sawczenko, 328 Ill. App. 3d at

897, 767 N.E.2d at 527. However, the reviewing court noted a circuit court “may allow the

filing of successive petitions when proceedings on a petition were deficient in some fundamental

way.” Sawczenko, 328 Ill. App. 3d at 897, 767 N.E.2d at 528. On the facts before it, the

Sawczenko court found the following:

“Nothing in the record indicates that the proceedings on defendant’s first

postconviction petition were deficient. However, in defendant’s second

-7- postconviction petition, he alleges that counsel appointed to represent him on his

first petition was ineffective for allowing him to withdraw his petition without

conferring with him sufficiently. We believe that this sufficiently alleges a

deficiency in the proceedings on [the] defendant’s first postconviction petition.”

Sawczenko, 328 Ill. App. 3d at 897, 767 N.E.2d at 528.

The court then reviewed the propriety of the circuit court’s first stage dismissal of the August

2000 petition. Sawczenko, 328 Ill. App. 3d at 897-99, 767 N.E.2d at 528-29.

¶ 19 The Taylor court found the circumstances of the case before it provided a stronger

basis than in Sawczenko for allowing the defendant to file his May 9, 2019, petition as an initial

petition. Taylor, 2022 IL App (2d) 190951, ¶ 28. Unlike in Sawczenko, the recall of the

reviewing court’s mandate led to the circuit court’s dismissal of the first postconviction petition

as moot. Taylor, 2022 IL App (2d) 190951, ¶ 28. The circuit court’s dismissal occurred shortly

after the defendant filed his first petition and before the defendant had any opportunity to

withdraw it. Taylor, 2022 IL App (2d) 190951, ¶ 28. Moreover, unlike in Sawczenko, where the

defendant was in court and requested the withdrawal of his September 1997 petition, the

defendant’s first petition was dismissed without him or counsel being in court or having any

input. Taylor, 2022 IL App (2d) 190951, ¶ 28. Last, unlike in Sawczenko, where the defendant

received an opportunity to show his constitutional rights were substantially violated, the

defendant did not have a similar opportunity. Taylor, 2022 IL App (2d) 190951, ¶ 28.

¶ 20 The Taylor court found additional support for its conclusion the defendant’s

second petition should be treated as a first petition in People v. Little, 2012 IL App (5th) 100547,

977 N.E.2d 902. In Little, 2012 IL App (5th) 100547, ¶ 19, the reviewing court held that, when a

defendant files an initial postconviction petition seeking only to reinstate the right to a direct

-8- appeal that was lost due to counsel’s ineffectiveness, a subsequent petition is not a successive

petition for purposes of section 122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f) (West

2010)). In its analysis, the Little court noted our supreme court has held the Postconviction “Act

affords every imprisoned defendant one complete opportunity to show a substantial denial of his

constitutional rights.” (Internal quotation marks omitted.) Little, 2012 IL App (5th) 100547,

¶ 20. It then found “section 122-1(f)’s reference to ‘one petition *** without leave of the court’

(725 ILCS 5/122-1(f) (West 2010)) refers to one complete opportunity to collaterally attack ‘the

proceedings which resulted in his or her conviction’ (725 ILCS 5/122-1(a)(1) (West 2010)).”

Little, 2012 IL App (5th) 100547, ¶ 21. When “a defendant has been denied that opportunity

because he used an initial petition solely to reinstate his right to a direct appeal that was forfeited

through no fault of his own, he should be ‘restored to the procedural posture he would have

enjoyed if he had been represented by effective counsel who had timely filed a notice of

appeal.’ ” Little, 2012 IL App (5th) 100547, ¶ 21 (quoting Urinyi v. United States, 607 F.3d 318,

321 (2d Cir. 2010) (per curiam)).

¶ 21 Here, in its order denying defendant leave to file a successive postconviction, the

circuit court found defendant had made an adequate allegation of cause where defendant alleged

Ogwal filed the first postconviction petition without defendant’s authority and knowledge and

attached an affidavit from Ogwal in support of the claim. Thus, as in Little and Taylor,

defendant has alleged he lost his opportunity to collaterally attack his conviction through no fault

of his own. Moreover, unlike in Sawczenko, defendant did not have a chance to withdraw the

first petition filed by Ogwal because he was unaware of it until he received notice of the circuit

court’s dismissal order. Defendant then filed a timely motion to vacate the court’s dismissal

order in an attempt to restore his opportunity for a collateral attack, but the circuit court denied

-9- the motion. Also, unlike in Sawczenko, where the defendant received an opportunity to show his

constitutional rights were substantially violated, the defendant did not have a similar opportunity

because Ogwal filed the unauthorized petition. Thus, like Taylor, the facts before us present

even a stronger case than Sawczenko for treating defendant’s second postconviction petition as

an initial petition. Accordingly, we find the circuit court erred by treating defendant’s January

2020 petition as a successive postconviction petition. We agree with the parties the proper

remedy is to remand the cause for second-stage postconviction proceedings. See Taylor, 2022 IL

App (2d) 190951, ¶ 38.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, we reverse the Champaign County circuit court’s dismissal

of defendant’s January 2020 postconviction petition and remand the cause for second-stage

postconviction proceedings.

¶ 24 Reversed and remanded with directions.

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