People v. Cherry

2022 IL App (5th) 200213-U

Opinion

NOTICE 2022 IL App (5th) 200213-U NOTICE Decision filed 11/18/22. The This order was filed under text of this decision may be NO. 5-20-0213 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 06-CF-870 ) JAMES CHERRY, ) Honorable ) Julie K. Katz, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.

ORDER

¶1 Held: Where the defendant did not satisfy the “cause” prong of the cause-and-prejudice test, the circuit court did not err in denying him leave to file a successive postconviction petition, and since any argument 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, James Cherry, appeals the circuit court’s order denying leave to file a

successive postconviction petition. Defendant’s appointed attorney, the Office of the State

Appellate Defender (OSAD), filed a motion to withdraw as counsel, arguing that this appeal

presents no arguably meritorious issues. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD

has notified defendant of its motion. This court provided defendant with an opportunity to file a

response, and he has done so. However, after considering OSAD’s motion and supporting

memorandum and defendant’s response, and the entire record on appeal, we agree that this appeal

1 presents no arguably meritorious issue. Therefore, we grant OSAD leave to withdraw and affirm

the circuit court’s judgment.

¶3 BACKGROUND

¶4 Following a jury trial, defendant was convicted of first degree murder and sentenced to 50

years’ imprisonment. Evidence at trial showed that defendant shot Michael Roddy and his

daughter Tania. Michael Roddy’s wound was fatal. According to Tania and another witness,

defendant pointed a gun at them during an argument. Defendant and Michael Roddy “tussled”

over the gun. Defendant, on the other hand, testified that it was Michael who pulled the gun and

pushed him as he was trying to leave.

¶5 On direct appeal, defendant argued only that his sentence was excessive. This court

affirmed. People v. Cherry, 2013 IL App (5th) 110452-U.

¶6 In 2014, defendant filed a postconviction petition in which he alleged that appellate counsel

was ineffective for not communicating with him prior to filing the appeal. The circuit court

summarily dismissed the petition on the ground that defendant had not specified how he was

prejudiced by counsel’s alleged ineffectiveness.

¶7 In 2020, defendant sought leave to file a successive postconviction petition. Defendant

acknowledged that a defendant must generally allege cause and prejudice in order to file a

successive petition, but argued that because a “fundamental miscarriage of justice” had occurred,

he should be afforded some remedy.

¶8 The attached petition raised four substantive claims: (1) trial counsel was ineffective for

failing to (a) request that the gun be dusted for fingerprints, (b) ask that the victim’s hands or

clothes be tested for gunshot residue, (c) articulate a cohesive defense strategy, (d) challenge the

legality of defendant’s arrest, (e) seek dismissal of the charges, and (f) seek reconsideration of the

2 sentence; (2) appellate counsel was ineffective for failing to raise trial counsel’s failure to object

to the prosecutor’s allegedly improper comments in closing argument to the effect that the jurors

had to decide which witnesses to believe; (3) the truth-in-sentencing statute requiring him to serve

100% of his sentence was unconstitutional; and (4) defendant was never admonished that he would

have to serve a term of mandatory supervised release (MSR) after his prison sentence.

¶9 The trial court denied leave to file, finding that the issues could have been raised in the first

petition. Defendant timely appealed.

¶ 10 ANALYSIS

¶ 11 OSAD contends that there is no meritorious argument that the court erred by denying

defendant leave to file a successive petition. OSAD concludes that the ineffective-assistance

claims could have been raised in the first petition and the remaining two claims fail on the merits

in any event.

¶ 12 The Post-Conviction Hearing Act (Act) provides a remedy to a criminal defendant whose

federal or state constitutional rights were substantially violated at his trial or sentencing. People

v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002). Within 90 days of its filing, the circuit court may

dismiss a petition if it is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West

2020). The Act contemplates the filing of only one petition. Id. § 122-1(f). The prohibition on

successive petitions will be relaxed where a defendant (1) satisfies the cause-and-prejudice test or

(2) makes a colorable claim of actual innocence. People v. Edwards, 2012 IL 111711, ¶¶ 22-24.

“Cause” refers to an objective factor external to the defense that impeded the defendant’s ability

to raise the claim earlier. Pitsonbarger, 205 Ill. 2d at 460.

¶ 13 Clearly, defendant’s ineffective-assistance claims were based on counsels’ actions before

trial, during trial, or on direct appeal, and thus could have been raised in his initial postconviction

3 petition. Defendant alleged no factors external to the defense that prohibited him from raising

those issues there.

¶ 14 As to the latter two issues, concerning truth-in-sentencing and MSR, defendant alleged that

he was unaware of them. However, the supreme court has held that a defendant’s ignorance of the

law may never be “cause” for filing a successive postconviction petition:

“This court has made very clear that ‘all citizens are charged with knowledge of the

law’ and that ‘[i]gnorance of the law or legal rights will not excuse a delay in filing a

lawsuit.’ ” People v. Evans, 2013 IL 113471, ¶ 13 (quoting People v. Lander, 215 Ill. 2d

577, 588 (2005)).

¶ 15 In Evans, “the only excuse that defendant proffers for not raising the MSR claim sooner is

that he only ‘just discovered’ that he would be subject to a three-year term of MSR following his

release.” Id. The court noted that, when defendant was sentenced, “the Unified Code of

Corrections expressly provided that, by operation of law, every sentence ‘shall include as though

written therein a [three-year term of MSR] in addition to the term of imprisonment.’ ” Id. (quoting

730 ILCS 5/5-8-1(d)(1) (West 2004)). Thus, the defendant was presumptively charged with

knowledge of that provision, and his “ ‘subjective ignorance of it’ ” was not “ ‘an objective factor

that impeded’ ” his ability to raise the MSR claim sooner. Id.

¶ 16 Evans clearly disposes of defendant’s MSR claim. Defendant argues that the truth-in-

sentencing statute was unconstitutional, permitting him to raise the issue at any time. However,

defendant’s claim that the statute is unconstitutional is simply wrong.

¶ 17 The legislature’s first attempt to enact a truth-in-sentencing statute, Public Act 89-404, was

invalidated by the supreme court on single-subject grounds in People v. Reedy, 186 Ill. 2d 1, 11-

12 (1999). However, while Reedy was working its way through the courts, the legislature

4 reenacted the truth-in-sentencing provisions in Public Act 90-592. Defendant asserted in his

petition that, because it was passed before Reedy was decided, Public Act 90-592 (Pub. Act 90-

592 (eff. June 19, 1998)) was also unconstitutional. However, Reedy expressly rejected this

argument, holding that the amendatory act cured the defects in the original legislation. Reedy, 186

Ill. 2d at 17.

¶ 18 In his motion, defendant argued that, despite the cause-and-prejudice test, he must be

afforded some remedy where a “fundamental miscarriage of justice” had occurred. He cited,

presumably by way of example, a laundry list of statutes, rules, and cases that provide for the

consideration of otherwise defaulted issues. But none of them apply here. Defendant cites, for

example, Rule 60 of the Federal Rules of Civil Procedure, which clearly has no application to a

state-law postconviction proceeding.

¶ 19 Defendant cites out of context some passages from Murray v. Carrier, 477 U.S. 478 (1986),

in support of a broad argument that courts must find some way to reach otherwise defaulted issues

if justice demands it. However, defendant overlooks that the Murray Court, relying on the cause-

and-prejudice test, reinstated the district court’s dismissal of the defendant’s habeas corpus

petition. Id. at 497. Thus, Murray does not stand for the broad proposition that a court must

always search for some mechanism to reach defaulted claims. Indeed, it supports the proposition

that the cause-and-prejudice test is an appropriate tool to decide whether an otherwise defaulted

claim should be considered.

¶ 20 The Court did acknowledge that “ ‘[i]n appropriate cases’ ” the principles of comity and

finality that inform the concepts of cause and prejudice “ ‘must yield to the imperative of correcting

a fundamentally unjust incarceration.’ ” Id. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135

(1982)). However, defendant’s nonspecific and speculative allegations of ineffective assistance

5 of counsel fall far short of making such a showing. Defendant claims, for example, that counsel

should have challenged the validity of his arrest without suggesting any legal basis for doing so.

He claims that counsel should have had the gun tested for fingerprints, but does not inform us what

such testing might have showed. He presumably thought that Roddy’s fingerprints might be on it,

but given that all witnesses to the fight testified that both men touched the gun at some point, it is

difficult to see how proving that Roddy’s prints were on it would have altered the trial’s outcome.

We have already held that defendant’s truth-in-sentencing claim fails on the merits and that his

MSR claim was forfeited. 1 Thus, defendant cannot establish that his incarceration is so

“fundamentally unjust” that we should disregard the statutorily mandated cause-and-prejudice test

to reach his tardy claims.

¶ 21 CONCLUSION

¶ 22 Accordingly, we agree with OSAD that this appeal presents no issue of even arguable

merit. We grant OSAD leave to withdraw and affirm the circuit court’s judgment.

¶ 23 Motion granted; judgment affirmed.

1 OSAD also argues, correctly, that defendant’s MSR claim fails on the merits. Defendant cited People v. Russell, 345 Ill. App. 3d 16 (2003), where the appellate court held that a defendant who pled guilty in exchange for a sentencing cap but was not informed that an MSR term would be added to it was entitled to have his sentence reduced so that the entire sentence, including MSR, was within the cap to which he agreed. The supreme court reached the same conclusion in People v. Whitfield, 217 Ill. 2d 177 (2005). However, as defendant was convicted and sentenced following a jury trial, Russell and Whitfield simply do not apply. 6