People v. Coates

2024 IL App (4th) 230089-U

• Court: Appellate Court of Illinois
• Decided: August 22, 2024
• Docket: 4-23-0089
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 230089-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-0089 August 22, 2024 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County LAMAR O. COATES, ) No. 11CF2761 Defendant-Appellant. ) ) Honorable ) Debra D. Schafer, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Zenoff and Vancil concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed the denial of defendant’s motion to amend his 2016 postconviction petition to add a claim based on a 2021 change to the definition of felony murder, holding the trial court properly ruled the new claim was meritless.

¶2 In 2013, a jury found defendant guilty of the 2011 first degree murder of Michael

Sago (the decedent). He was convicted under section 9-1(a)(3) of the Criminal Code of 1961 (now

the Criminal Code of 2012) (720 ILCS 5/9-1(a)(3) (West 2010)), which provided, “A person who

kills an individual without lawful justification commits first degree murder if, in performing the

acts which cause the death,” he or she “is attempting or committing a forcible felony other than

second degree murder.” In other words, defendant was convicted of what is commonly called

“felony murder.” The State’s evidence tended to show defendant and three others—including the

decedent—attempted an armed robbery. An off-duty sheriff’s deputy fatally shot the decedent. The trial court sentenced defendant to 40 years’ imprisonment. The Second District affirmed the

conviction. People v. Coates, 2015 IL App (2d) 130762-U.

¶3 In 2016, defendant filed a petition for relief under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/122-1 et seq. (West 2016)). In June 2021, defendant moved to file an

“Additional Supplemental Petition for Post-Conviction Relief,” in which he sought to have the

trial court consider the July 2021 amendment to the felony murder provision of the Criminal Code

of 2012 made by Public Act 101-652, § 10-216 (eff. July 1, 2021), which he contended, if

applicable in 2011, would have precluded the murder charges against him. Under the amendment,

a person commits felony murder if “without lawful justification *** in performing the acts which

cause the death,” he or she “acting alone or with one or more participants, commits or attempts to

commit a forcible felony other than second degree murder, and in the course of or in furtherance

of such crime or flight therefrom, he or she or another participant causes the death of a person.”

(Emphasis added.) 720 ILCS 5/9-1(a)(3) (West 2022). Defendant contended, given the

amendment, his continued incarceration for murder was fundamentally unfair and thus a denial of

due process. The court ruled the claim in the “Additional Supplemental Petition” lacked merit and

therefore denied defendant’s motion to file the pleading.

¶4 Defendant now asserts the trial court was wrong in ruling his claim was meritless.

Alternatively, he contends the court committed procedural errors in denying his motion. He

therefore asks us to vacate the motion’s denial and to remand the cause. We affirm.

¶5 I. BACKGROUND

¶6 A. The Conviction and the Appeal

¶7 In 2011, a grand jury indicted defendant on 33 counts, including the felony murder

at issue. In 2013, a jury convicted defendant of the murder and the predicate felonies of attempted

-2- armed robbery, mob action, and conspiracy. The State’s evidence tended to show defendant and

the decedent, together with Desmond L. Bellmon and Brandon L. Sago, attempted to rob a

Rockford, Illinois, pizzeria. In the ensuing disturbance, Frank Pobjecky, an off-duty sheriff’s

deputy, fatally shot the decedent. The trial court sentenced defendant to 40 years’ imprisonment.

¶8 Defendant appealed, contending the trial court had erred in instructing the jury

about a peace officer’s right to use deadly force. Coates, 2015 IL App (2d) 130762-U, ¶ 8. He

asserted giving the instruction was an abuse of discretion because “Pobjecky’s status was not an

element of the offense, he was not acting as a police officer at the time, and defendant was unaware

that Pobjecky was a police officer.” Id. The Second District affirmed, holding, “The record fail[ed]

to support a conclusion that the instruction was essential to the jury’s verdict. Id. ¶ 11.

¶9 B. The Postconviction Petition and the First Supplemental Petition

¶ 10 Defendant, who was represented by retained counsel, filed his original petition

under the Act in October 2016. As initially supplemented in February 2017, the petition alleged

defendant had received ineffective assistance of counsel during his trial. He further alleged

Illinois’s “proximate cause” theory of felony murder was “so broad that it unconstitutionally

reduces the State’s burden of proof on one of the essential elements of the crime of murder.”

Finally, it alleged appellate counsel was ineffective for failing to make a reasonable-doubt

argument based on the unjustifiability of Pobjecky’s shooting of the decedent.

¶ 11 In April 2019, the State moved to dismiss the original and supplemental petitions

on several bases, including untimeliness. In August, defendant moved for leave to amend the

petition to include an explanation for why the untimeliness was not the result of his culpable

negligence. He further sought to add a claim his sentencing hearing was improper because the trial

court had considered in aggravation a conviction which, under People v. Aguilar, 2013 IL 112116,

-3- and People v. Burns, 2015 IL 117387, was void. The court allowed the amendment, but it later

deemed the petition untimely. However, the State, citing the interests of judicial economy, asked

it to address defendant’s claims on their merits.

¶ 12 The trial court chose to consider the claims, and without conducting an evidentiary

hearing, it granted defendant’s petition to the extent of ordering a new sentencing hearing. The

court further set an evidentiary hearing on the remaining claims. The State asked it to reconsider

this decision. The court agreed and set all claims for an evidentiary hearing on July 12, 2021.

¶ 13 C. The “Additional Supplemental Petition”

¶ 14 On June 24, 2021, defendant filed his “Additional Supplemental Petition for

Post-Conviction Relief.” He asked the trial court to consider, under the first degree murder

statutory amendments to become effective July 1, 2021, no one could be convicted under a felony

murder theory unless the person or a cofelon directly caused a death. He conceded the amendment

to the first degree murder statute was not, by its plain language, retroactive, but he argued it was

contrary to fundamental fairness to allow his murder conviction to stand when his conduct would

no longer be punishable as murder in Illinois. He also contended he was similarly situated to

individuals who would henceforth avoid murder prosecutions for the death of cofelons.

¶ 15 The State opposed defendant’s motion to file the new claim. It noted, under section

122-5 of the Act (725 ILCS 5/122-5 (West 2020)), the trial court should decide whether to allow

the new claim, as it would consider an amendment to a civil pleading. It contended the new claim

was not an appropriate amendment. It further contended the new claim was patently without merit.

¶ 16 The trial court addressed defendant’s motion at a December 2021 hearing. It stated

the parties agreed: (1) had the statutory amendment applied on the date of the offense, defendant

could not have been convicted of felony murder and (2) the legislature had not made the

-4- amendment retroactive. The court found, “[D]efendant has not established that his conviction

violates due process or equal protection concerns and, therefore, I do not find that the additional

supplemental petition for post-conviction relief has any legal merit.” Consequently, it denied the

motion for leave to file the “Additional Supplemental Petition.”

¶ 17 The trial court granted defendant’s petition as to his claim Aguilar and Burns

required he receive a new sentencing hearing, but it denied his remaining claims. On resentencing,

it reduced defendant’s sentence to 39 years’ imprisonment. Defendant filed a motion for

reconsideration of the sentence, which the court denied.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, defendant argues, because his “Additional Supplemental Petition for

Post-Conviction Relief” stated a “viable [claim of a] due process violation based on fundamental

fairness,” the trial court erred in denying defendant leave to file his pleading. He contends an

imprisonment based on behavior no longer considered criminal under Illinois law violates

principles of fundamental fairness and is thus a violation of his substantive due process rights. He

also implies the disparity between his treatment and the treatment of those otherwise similarly

situated but for the passage of the amendment violates his right to equal protection.

¶ 21 Alternatively, he argues the trial court should have followed the rules set out in

section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2016)), which relates to the filing of

successive postconviction petitions. Those rules would bar the State from addressing whether the

trial court should allow defendant to file his “Additional Supplemental Petition.” Under our

supreme court’s holding in People v Bailey, 2017 IL 121450, on which defendant relies, the State

-5- may not participate in the initial decision by the court regarding whether to allow a defendant to

file a successive petition.

¶ 22 We reject both defendant’s arguments. First, to avoid further ambiguity, we explain

why defendant’s “Additional Supplemental Petition” was a proposed amendment to the initial

petition and governed by the standard civil rules for amending pleadings. Next, we address why

the amendment lacked merit. We deem defendant’s authorities fail to support his claim. Moreover,

although he implies the existence of an equal protection claim, he has failed to develop it.

¶ 23 First, defendant’s “Additional Supplemental Petition” was an amendment to his

original petition. As its title makes clear, it was intended to supplement the petition he had already

filed. The introduction to the “Additional Supplemental Petition” states: “The petitioner [hereby]

seeks to supplement his previously filed petitions with the allegations and analysis offered herein.

In so doing, he does not abandon any of the contentions or arguments made in his previously filed

petition.” In other words, defendant’s “Additional Supplemental Petition” incorporates the

previous filings by reference. It is therefore not a new petition.

¶ 24 Because the “Additional Supplemental Petition” was an amendment, the trial court

did not err in allowing the State to respond to defendant’s motion to file it. Section 122-5 of the

Act (725 ILCS 5/122-5 (West 2016)) provides: “The court may in its discretion make such order

as to amendment of the petition *** as shall be appropriate, just and reasonable and as is generally

provided in civil cases.” Consistent with civil practice, this provision places no restriction on the

State’s ability to respond to proposed amendments.

¶ 25 Second, defendant argues his amended petition states a claim for a due process

violation. However, the two cases on which he relies, People v. Stapinski, 2015 IL 118278, and

People v. Madrigal, 241 Ill. 2d 463 (2011), fail to support his claim.

-6- ¶ 26 In Stapinski, the supreme court explained when an unfair action by the State

constitutes a violation of the right to substantive due process:

“[W]e [have] held that due process is implicated whenever the State engages in

conduct towards its citizens deemed oppressive, arbitrary or unreasonable.

[Citation.] Further, since the essence of due process is fundamental fairness, due

process essentially requires fairness, integrity, and honor in the operation of the

criminal justice system, and in its treatment of the citizen’s cardinal constitutional

protections. *** [Citation.] To violate substantive due process, the government’s

conduct must shock[ ] the conscience and violate the decencies of civilized conduct.

[Citation.]” (Internal quotation marks omitted.) Stapinski, 2015 IL 118278, ¶ 51.

The Madrigal court explained: “This court has repeatedly held that a statute violates the due

process clauses of both the Illinois and United States Constitutions if it potentially subjects wholly

innocent conduct to criminal penalty without requiring a culpable mental state beyond mere

knowledge.” Madrigal, 241 Ill. 2d at 467.

¶ 27 Neither case addresses our former felony murder rule. Madrigal is inapposite

because the felony murder rule does not punish innocent conduct. “The offense of felony murder

is unique in that, in order to commit felony murder, the defendant need not have had the intent to

kill; rather, the defendant must have had the intent to commit the predicate forcible felony.”

(Emphasis added.) People v. Colbert, 2013 IL App (1st) 112935, ¶ 12. Stapinski provides

insufficient support for defendant’s claims because it does not explain why the former felony

murder provision, applied to the circumstances here, “shock[s] the conscience and violate[s] the

decencies of civilized conduct.” (Internal quotation marks omitted.) Stapinski, 2015 IL 118278,

¶ 51.

-7- ¶ 28 To be sure, the felony murder doctrine has always been controversial, particularly

when it has been applied to cofelon deaths caused by victims or third parties. For example, the

dissent of Justice Bilandic in People v. Dekens, 182 Ill. 2d 247, 255-56 (1998) (Bilandic, J.,

dissenting) described such an application of the doctrine “absurd and unfair”:

“I would hold that the felony-murder doctrine does not apply to render a surviving

felon guilty of murder where a cofelon is killed by a nonparticipant in the felony.

As codified in Illinois, the felony-murder doctrine permits a defendant to be

convicted of first degree murder if, ‘in performing the acts which cause the death

*** he is attempting or committing a forcible felony.’ [Citation.] Under this

doctrine, the defendant need not have intended, nor even contemplated, causing

anyone’s death. Rather, the defendant’s culpability for murder rests solely on his

commission or attempt of one of a list of felonies. Accordingly, the ramifications

of the felony-murder doctrine are harsh *** . ***

The justification for the felony-murder rule is that forcible felonies are so

‘inherently dangerous’ that a death occurring in the course thereof is strongly

probable. [Citation.] Obviously, the ‘inherent danger’ referred to here is the danger

to the victims of the felonies, or to bystanders or intervenors. It certainly was not

the potential danger to the participants in the forcible felony which prompted the

legislature to codify this form of murder. As this court stated recently ***, the

felony-murder rule reflects the legislature’s concern for ‘protecting the general

populace.’ [Citation.] *** Extending the doctrine to render a defendant guilty of

first degree murder when his cofelon is killed by the intended victim of the

-8- attempted felony so dilutes the justification for the felony-murder doctrine as to

make it absurd and unfair.” (Emphasis in original.)

¶ 29 However, despite such objections, Illinois courts have upheld the application of the

felony murder doctrine to cases in which a cofelon is killed by a victim or third party. The majority

in Dekens concluded the language of the felony murder provision required this result. It held the

legislature had adopted the “proximate cause theory” of felony murder and “denying liability when

the decedent is a cofelon would conflict with the legislature’s adoption of [this] theory.” Id. at 254.

“Under [the ‘proximate cause’ theory of felony murder], liability attaches ‘for any

death proximately resulting from the unlawful activity—notwithstanding the fact

that the killing was by one resisting the crime.’ [Citation.] The other principal

theory of liability under the felony-murder doctrine is the agency theory, which is

followed by a majority of jurisdictions. Under the agency theory, ‘ “the doctrine of

felony murder does not extend to a killing, although growing out of the commission

of the felony, if directly attributable to the act of one other than the defendant or

those associated with him in the unlawful enterprise.” [Citations.]’ [Citation.] There

is no liability under the agency theory when the homicide is committed by a person

resisting the felony. ***

***

*** [W]e believe that our case law compels application of the

felony-murder doctrine to the circumstances of this case. *** Illinois follows the

proximate cause theory of felony murder, as opposed to the agency theory.

Consistent with the proximate cause theory, liability should lie for any death

proximately related to the defendant’s criminal conduct.” Id. at 249-52.

-9- In other words, the Dekens majority held any unfairness in the application of the felony murder

doctrine to the deaths of cofelons at the hands of victims or third parties was a problem for the

legislature, not the courts. Dekens remains binding precedent as to the interpretation of the former

felony murder law. Thus, defendant’s conviction was consistent with the law applicable in 2011.

¶ 30 Defendant has not explained how the legislature’s amendment of the felony murder

provision changes anything. To be sure, the amended provision effectively makes the Dekens

dissent the law. The legislature did not, however, provide for expunging or otherwise nullifying

murder convictions relying on the former provision.

¶ 31 Finally, defendant implies he has an equal protection claim. Specifically, he

suggests he is similarly situated to felons who have avoided murder convictions due to the change

in the felony murder provision. See, e.g., Caulkins v. Pritzker, 2023 IL 129453, ¶ 46 (“The equal

protection clause guarantees that similarly situated individuals will be treated in a similar manner,

unless the government can demonstrate an appropriate reason to treat those individuals

differently.”). However, he entirely fails to develop such a claim. As such, he has forfeited it.

Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires an appellant’s brief to include

“[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with

citation of the authorities and the pages of the record relied on.” It further provides, “Points not

argued [in the appellant’s brief] are forfeited and shall not be raised in the reply brief, in oral

argument, or on petition for rehearing.”

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the trial court’s denial of defendant’s motion to

amend his postconviction petition.

¶ 34 Affirmed.

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