NOTICE 2022 IL App (4th) 210663-U FILED This Order was filed under Supreme Court Rule 23 and is October 6, 2022 not precedent except in the NO. 4-21-0663 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. ) Sangamon County DONALD COOKSON, ) No. 00CF1073 Defendant-Appellant. ) ) Honorable ) John Madonia, ) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices DeArmond and Zenoff concurred in the judgment.
ORDER ¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to withdraw as counsel and affirmed the trial court’s judgment as no issue of arguable merit could be raised on appeal.
¶2 Defendant, Donald Cookson, appeals from the trial court’s dismissal of his pro se
postconviction petition. On appeal, the Office of the State Appellate Defender (OSAD) moves to
withdraw as counsel on the ground no issue of arguable merit can be raised. Defendant did not
file a response to OSAD’s motion. We grant OSAD’s motion and affirm the trial court’s
judgment.
¶3 I. BACKGROUND
¶4 This court has set forth the underlying facts of this case in defendant’s prior
appeal. See People v. Cookson, 335 Ill. App.3d 786, 780 N.E.2d 807 (2002). Accordingly, we
will set forth only those facts necessary to resolve the issues presented in this case. ¶5 In November 2000, the State charged defendant with two counts of predatory
criminal sexual assault (720 ILCS 5/12-14(a)(1), 12-14.1(a)(1) (West 2000)), and one count of
aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2000)). The charges
stemmed from allegations made by defendant’s stepdaughter A.C., a minor under the age of 13,
regarding instances of sexual penetration.
¶6 On June 19, 2001, the matter proceeded to a two-day jury trial. The State
presented evidence tending to show on January 29, 2000, Dorothy Rice, a child welfare specialist
with the Department of Children and Family Services (DCFS), picked up A.C. from the police
station. While driving her to an emergency foster placement, A.C. told Rice about an instance in
which defendant had sexually assaulted A.C. The following day, A.C. disclosed to LaVerne
Landers, foster parent to both A.C. and her half-brother, D.C., defendant had “f*** me in the
a***.” On January 31, 2000, Springfield Police Detective Richard Wiese and DCFS Child
Protective Investigator Tim Gonzalez interviewed A.C. During the interview, A.C. described two
instances of anal penetration by defendant. Judith Cookson, A.C.’s mother, was unavailable and
did not testify.
¶7 The jury found defendant guilty of predatory criminal sexual assault (count I) and
aggravated criminal sexual abuse (count III). On July 18, 2001, defendant filed a posttrial
motion, seeking a judgment of acquittal notwithstanding the verdict, or, in the alternative, a new
trial. At a hearing on August 17, 2001, the trial court denied defendant’s motion, merged count
III with count I, and after hearing argument from the parties, sentenced defendant to 25 years’
imprisonment.
¶8 On direct appeal, defendant argued (1) the trial court improperly excluded
evidence of sexual abuse allegations made by A.C. against another person which were
-2- determined to be unfounded, (2) the court abused its discretion in admitting certain out of court
statements, (3) the court erred in finding A.C. competent to testify, and (4) his conviction for
aggravated criminal sexual abuse was a lesser included offense of predatory criminal sexual
assault. This court affirmed the trial court’s judgment. Cookson, 335 Ill. App. 3d at 788. The
Illinois Supreme Court later affirmed this court’s decision. People v. Cookson, 215 Ill. 2d 194,
197, 830 N.E.2d 484, 486 (2005).
¶9 On April 15, 2021, defendant filed a pro se postconviction petition, alleging
(1) he was denied due process in Sangamon County case No. 96-CF-421 when Wiese allegedly
coerced Judith into making a false statement against defendant leading to improper seizure of
evidence in case No. 96-CF-421 and (2) he was denied due process in case No. 96-CF-421 when
Wiese allegedly testified as to Judith’s false statement to the grand jury, assuring the jury Judith
would testify, and because she never testified, this deprived defendant of his right to confront
witnesses and rendered the indictment void.
¶ 10 On July 7, 2021, the trial court entered a docket entry denying defendant’s
postconviction petition. The court determined defendant’s allegations were frivolous and
patently without merit, noting “[d]efendant’s petition merely contains conclusions that are
entirely unsupported by any well plead facts.” Regarding defendant’s first claim, the court noted
the allegations “apparently do not even relate to the proceedings in this case, [Sangamon County
case No.] 00-CF-1073.” Moreover, the court concluded defendant’s allegations were completely
devoid of “any factual support regarding the nature and substance of the false statements that
[d]efendant contends deprived him of due process.” The court then addressed defendant’s second
claim, concluding “[t]he same deficiencies exist with respect to the allegations [d]efendant
-3- makes in ‘Ground Two’ of his petition,” and again noting defendant’s allegations were
completely devoid of any factual support.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 OSAD contends no meritorious argument can be made the trial court erred in
summarily dismissing defendant’s postconviction petition. We agree.
¶ 14 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020))
provides a mechanism for a criminal defendant to challenge his conviction or sentence based on
a substantial violation of federal or state constitutional rights. People v. Morris, 236 Ill. 2d 345,
354, 925 N.E.2d 1069, 1074-75 (2010). Proceedings under the Act are collateral in nature and
not an appeal from the defendant’s conviction or sentence. People v. English, 2013 IL 112890,
¶ 21, 987 N.E.2d 371. At the first stage of proceedings, the trial court must, within 90 days and
without seeking or relying on input from the State, summarily dismiss the petition if it
determines the petition is frivolous or patently without merit, meaning “the petition has no
arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 11-12, 912 N.E.2d 1204,
1209 (2009); see also 725 ILCS 5/122-2.1(a)(2) (West 2020); People v. Gaultney, 174 Ill. 2d
410, 419, 675 N.E.2d 102, 107 (1996). At the first stage of proceedings under the Act, all
well-pleaded allegations are to be taken as true unless those allegations are positively rebutted by
the record. People v. Brown, 236 Ill.
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NOTICE 2022 IL App (4th) 210663-U FILED This Order was filed under Supreme Court Rule 23 and is October 6, 2022 not precedent except in the NO. 4-21-0663 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. ) Sangamon County DONALD COOKSON, ) No. 00CF1073 Defendant-Appellant. ) ) Honorable ) John Madonia, ) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices DeArmond and Zenoff concurred in the judgment.
ORDER ¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to withdraw as counsel and affirmed the trial court’s judgment as no issue of arguable merit could be raised on appeal.
¶2 Defendant, Donald Cookson, appeals from the trial court’s dismissal of his pro se
postconviction petition. On appeal, the Office of the State Appellate Defender (OSAD) moves to
withdraw as counsel on the ground no issue of arguable merit can be raised. Defendant did not
file a response to OSAD’s motion. We grant OSAD’s motion and affirm the trial court’s
judgment.
¶3 I. BACKGROUND
¶4 This court has set forth the underlying facts of this case in defendant’s prior
appeal. See People v. Cookson, 335 Ill. App.3d 786, 780 N.E.2d 807 (2002). Accordingly, we
will set forth only those facts necessary to resolve the issues presented in this case. ¶5 In November 2000, the State charged defendant with two counts of predatory
criminal sexual assault (720 ILCS 5/12-14(a)(1), 12-14.1(a)(1) (West 2000)), and one count of
aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2000)). The charges
stemmed from allegations made by defendant’s stepdaughter A.C., a minor under the age of 13,
regarding instances of sexual penetration.
¶6 On June 19, 2001, the matter proceeded to a two-day jury trial. The State
presented evidence tending to show on January 29, 2000, Dorothy Rice, a child welfare specialist
with the Department of Children and Family Services (DCFS), picked up A.C. from the police
station. While driving her to an emergency foster placement, A.C. told Rice about an instance in
which defendant had sexually assaulted A.C. The following day, A.C. disclosed to LaVerne
Landers, foster parent to both A.C. and her half-brother, D.C., defendant had “f*** me in the
a***.” On January 31, 2000, Springfield Police Detective Richard Wiese and DCFS Child
Protective Investigator Tim Gonzalez interviewed A.C. During the interview, A.C. described two
instances of anal penetration by defendant. Judith Cookson, A.C.’s mother, was unavailable and
did not testify.
¶7 The jury found defendant guilty of predatory criminal sexual assault (count I) and
aggravated criminal sexual abuse (count III). On July 18, 2001, defendant filed a posttrial
motion, seeking a judgment of acquittal notwithstanding the verdict, or, in the alternative, a new
trial. At a hearing on August 17, 2001, the trial court denied defendant’s motion, merged count
III with count I, and after hearing argument from the parties, sentenced defendant to 25 years’
imprisonment.
¶8 On direct appeal, defendant argued (1) the trial court improperly excluded
evidence of sexual abuse allegations made by A.C. against another person which were
-2- determined to be unfounded, (2) the court abused its discretion in admitting certain out of court
statements, (3) the court erred in finding A.C. competent to testify, and (4) his conviction for
aggravated criminal sexual abuse was a lesser included offense of predatory criminal sexual
assault. This court affirmed the trial court’s judgment. Cookson, 335 Ill. App. 3d at 788. The
Illinois Supreme Court later affirmed this court’s decision. People v. Cookson, 215 Ill. 2d 194,
197, 830 N.E.2d 484, 486 (2005).
¶9 On April 15, 2021, defendant filed a pro se postconviction petition, alleging
(1) he was denied due process in Sangamon County case No. 96-CF-421 when Wiese allegedly
coerced Judith into making a false statement against defendant leading to improper seizure of
evidence in case No. 96-CF-421 and (2) he was denied due process in case No. 96-CF-421 when
Wiese allegedly testified as to Judith’s false statement to the grand jury, assuring the jury Judith
would testify, and because she never testified, this deprived defendant of his right to confront
witnesses and rendered the indictment void.
¶ 10 On July 7, 2021, the trial court entered a docket entry denying defendant’s
postconviction petition. The court determined defendant’s allegations were frivolous and
patently without merit, noting “[d]efendant’s petition merely contains conclusions that are
entirely unsupported by any well plead facts.” Regarding defendant’s first claim, the court noted
the allegations “apparently do not even relate to the proceedings in this case, [Sangamon County
case No.] 00-CF-1073.” Moreover, the court concluded defendant’s allegations were completely
devoid of “any factual support regarding the nature and substance of the false statements that
[d]efendant contends deprived him of due process.” The court then addressed defendant’s second
claim, concluding “[t]he same deficiencies exist with respect to the allegations [d]efendant
-3- makes in ‘Ground Two’ of his petition,” and again noting defendant’s allegations were
completely devoid of any factual support.
¶ 11 This appeal followed.
¶ 12 II. ANALYSIS
¶ 13 OSAD contends no meritorious argument can be made the trial court erred in
summarily dismissing defendant’s postconviction petition. We agree.
¶ 14 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020))
provides a mechanism for a criminal defendant to challenge his conviction or sentence based on
a substantial violation of federal or state constitutional rights. People v. Morris, 236 Ill. 2d 345,
354, 925 N.E.2d 1069, 1074-75 (2010). Proceedings under the Act are collateral in nature and
not an appeal from the defendant’s conviction or sentence. People v. English, 2013 IL 112890,
¶ 21, 987 N.E.2d 371. At the first stage of proceedings, the trial court must, within 90 days and
without seeking or relying on input from the State, summarily dismiss the petition if it
determines the petition is frivolous or patently without merit, meaning “the petition has no
arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 11-12, 912 N.E.2d 1204,
1209 (2009); see also 725 ILCS 5/122-2.1(a)(2) (West 2020); People v. Gaultney, 174 Ill. 2d
410, 419, 675 N.E.2d 102, 107 (1996). At the first stage of proceedings under the Act, all
well-pleaded allegations are to be taken as true unless those allegations are positively rebutted by
the record. People v. Brown, 236 Ill. 2d 175, 189, 923 N.E.2d 748, 757 (2010). We review the
trial court’s summary dismissal of a postconviction petition de novo. People v. Edwards, 197 Ill.
2d 239, 247, 757 N.E.2d 442, 447 (2001).
¶ 15 A. Procedural Error
-4- ¶ 16 OSAD first asserts it can make no colorable argument the trial court procedurally
erred in summarily dismissing defendant’s postconviction petition at the first stage. Defendant
filed his pro se postconviction petition on April 15, 2021. The trial court entered its order on July
7, 2021. OSAD correctly notes the statutory 90-day window expired on July 14, 2021.
Accordingly, we agree with OSAD it is not arguable the trial court procedurally erred in
dismissing defendant’s petition.
¶ 17 B. Due Process
¶ 18 OSAD next asserts it can make no colorable argument the trial court erred in
summarily dismissing defendant’s due process claim based upon allegedly false testimony
obtained in a 1996 prosecution, wholly unrelated to the case at bar. “Postconviction relief is
limited to constitutional deprivations that occurred during the original trial.” (Emphasis added.)
People v. House, 2021 IL 125124, ¶ 15, 185 N.E.3d 1234. OSAD correctly notes Judith did not
testify in the present case, thus her credibility is not at issue. Wiese testified and therefore his
credibility could have been attacked. However, we agree with OSAD the “facts” which arose
from case No. 96-CF-421 were known to defendant at the time. Additionally, Wiese’s alleged
statements in case No. 96-CF-421 would only be relevant if defendant asserted his trial counsel
was ineffective for failing to attack Wiese’s credibility. However, defendant made no allegation
of ineffective assistance of counsel in his postconviction petition. “[A] claim not raised in a
petition cannot be argued for the first time on appeal.” People v. Jones, 213 Ill. 2d 498, 505, 821
N.E.2d 1093, 1097 (2004). Therefore, we agree with OSAD it is not arguable the trial court erred
in dismissing defendant’s due process claim.
¶ 19 C. Actual Innocence
-5- ¶ 20 OSAD next asserts it can make no colorable argument the trial court erred in
summarily dismissing defendant’s actual innocence claim. OSAD notes defendant’s actual
innocence claim is based on Judith’s failure to testify in case No. 96-CF-421, therefore depriving
defendant of the right to confront his accuser, and “rendering the charges void and thus making
him actually innocent.” OSAD argues defendant’s analysis misconstrues the nature of an actual
innocence claim. We agree.
¶ 21 “To establish a claim of actual innocence, the supporting evidence must be
(1) newly discovered, (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, 181
N.E.3d 37. Here, defendant has failed to raise a colorable claim of actual innocence because the
alleged evidence stemmed from a 1996 prosecution and was known to defendant at the time of
his trial in case No. 00-CF-1073. Additionally, the alleged evidence is not relevant to defendant’s
conviction in case No. 00-CF-1073. Rather, as OSAD correctly notes, the evidence relates to a
prosecution in case No. 96-CF-421 for an unlawful use of a weapon by a felon charge which was
ultimately dismissed by motion of the State. We agree with OSAD and find defendant’s claims
lack merit.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we grant OSAD’s motion to withdraw as counsel and
affirm the trial court’s judgment.
¶ 24 Affirmed.
-6-