People v. Cox

2024 IL App (5th) 240723-U

Opinion

NOTICE 2024 IL App (5th) 240723-U NOTICE Decision filed 12/19/24. The This order was filed under text of this decision may be NOS. 5-24-0723, 5-24-0724 cons. 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, ) Christian County. ) v. ) Nos. 04-CF-112, 04-CF-154 ) CHRISTOPHER J. COX, ) Honorable ) Bryan M. Kibler, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: The trial court properly dismissed the defendant’s section 2-1401 petition where the issue was barred by res judicata, the defendant having raised the identical issue in two prior collateral actions. As any argument to the contrary would lack merit, we grant the defendant’s appointed counsel on appeal leave to withdraw and affirm the trial court’s judgment.

¶2 The defendant, Christopher J. Cox, appeals the trial court’s order denying leave to file a

successive postconviction petition. His appointed appellate counsel, the Office of the State

Appellate Defender (OSAD), concludes that there is no reasonably meritorious argument that the

trial court erred in doing so. Accordingly, it has filed a motion for leave to withdraw as counsel on

appeal and a supporting memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD

has notified the defendant of its motion. This court has provided him with an opportunity to

respond and he has filed a response. However, after considering the record on appeal, OSAD’s

1 motion and supporting memorandum, and the defendant’s response, we agree that there is no issue

that could support an appeal. Accordingly, we grant OSAD leave to withdraw and affirm the trial

court’s judgment.

¶3 BACKGROUND

¶4 Following a consolidated jury trial in 2005, the defendant was convicted in Christian

County cases 04-CF-112 and 04-CF-154 of armed violence, aggravated unlawful restraint,

unlawful restraint, aggravated fleeing to elude a peace officer, domestic battery, and disorderly

conduct. On November 1, 2005, the trial court sentenced him to 22 years’ imprisonment for armed

violence and 3 years’ imprisonment for unlawful restraint and aggravated fleeing to elude a peace

officer. The defendant was sentenced to 364 days in county jail for domestic battery and 30 days

for disorderly conduct. The aggravated unlawful restraint conviction was vacated as a lesser-

included offense. In a docket entry dated November 1, 2005, the trial court found that the defendant

caused the victim great bodily harm, meaning that he would have to serve 85% of the 22-year

sentence.

¶5 On direct appeal, this court affirmed. People v. Cox, No. 5-06-0033 (2007) (unpublished

order under Illinois Supreme Court Rule 23). We specifically rejected the defendant’s argument

that the trial court did not make the finding of great bodily harm required to impose the 85%

requirement. We quoted the trial court’s November 1, 2005, docket entry which stated that the

offense “ ‘resulted in great bodily harm as the victim suffered a cut on her throat, numerous bruises

to her body and face due to injuries inflicted by Defendant.’ ” (Emphasis omitted.) Id., slip order

at 10-11. We recounted the evidence at trial and in the victim-impact statement and found that it

provided “ample support for the trial court’s finding that the defendant caused great bodily harm.”

Id., slip order at 11.

2 ¶6 In 2007, the defendant filed a postconviction petition. The trial court dismissed it at the

second stage. On appeal, this court granted OSAD’s motion to withdraw and affirmed. People v.

Cox, No. 5-08-0498 (2010) (unpublished order under Illinois Supreme Court Rule 23).

¶7 In 2012, the defendant filed a section 2-1401 (735 ILCS 5/2-1401 (West 2012)) petition.

The petition included numerous claims of a vast conspiracy against the defendant. It also alleged

that requiring him to serve 85% of his sentence on the basis of the trial court’s finding of great

bodily harm violated due process, as a jury was required to make such a determination. The trial

court dismissed the petition on the ground that it was untimely.

¶8 On appeal, we summarized some of the defendant’s claims as follows: that “(1) [t]he State

*** ‘conspired’ with Cox’s wife and with various police officers to ‘manufacture evidence’ against

him, including a 9-1-1 call and photographs of the crime scene and of Cox’s wife’s injuries ***

[and] (2) at Cox’s trial, and with the knowledge of the trial judge, the State relied on ‘manufactured

false evidence and testimony,’ including ‘bogus photographs’ of Cox’s wife, *** and *** some of

the photographs admitted into evidence, and a doctor’s report, showed that Cox’s wife had not

suffered any injuries at the hands of Cox.” People v. Cox, 2014 IL App (5th) 120391-U, ¶ 7. We

held, however, that the trial court properly dismissed the petition on the ground that it was

untimely. Id. ¶ 14. We specifically discussed the defendant’s argument about serving 85% of his

sentence because, under the law at that time, a sentence not authorized by statute was void. 1 Id.

¶ 19. We held, however, that “[t]his order was entered pursuant to, and in accordance with, section

3-6-3(a)(2)(iii) of the Unified Code of Corrections,” which was constitutional. Id. (citing 730 ILCS

5/3-6-3(a)(2)(iii) (West 2004)).

1 Prior to 2015, a sentence that did not conform to statutory requirements was considered void. In People v. Castleberry, 2015 IL 116916, the court abolished the “void sentence” rule. Since that time, an improper sentence is merely voidable and not void. Id. ¶¶ 11-18. 3 ¶9 In 2014, the defendant filed a “Motion for Order Nunc Pro Tunc,” in which he again

challenged the 85% order. He contended that the trial court did not find great bodily harm and that

the victim’s injuries did not amount to great bodily harm. The trial court dismissed the pleading

on the ground of res judicata. The defendant filed an appeal but voluntarily dismissed it.

¶ 10 In 2019, the defendant filed a “Motion to Amend the Mittimus,” seeking an amended

mittimus “to reflect for the Illinois Department of Corrections that the defendant is serving a 50-

percent sentence rather than an 85-percent sentence.” The defendant alleged that the trial court had

never found great bodily harm in an oral pronouncement. The trial court denied the motion, finding

it “frivolous.” This court affirmed. People v. Cox, No. 5-19-0389 (2022) (unpublished summary

order under Illinois Supreme Court Rule 23(c)).

¶ 11 On February 1, 2021, the defendant filed a motion for leave to file a successive

postconviction petition. The defendant attached to the petition various photographs and

documents. The trial court struck the pleading because the defendant’s prior appeal was still

pending.

¶ 12 On April 21, 2023, the defendant filed a motion for leave to file a successive postconviction

petition in both 04-CF-112 and 04-CF-154 that is the subject of this appeal. The defendant’s

arguments are difficult to summarize, but they primarily relate to the alleged conspiracy among

Christian County officials. The petition analyzes at length two photographs of the victim’s injuries.

The defendant alleged:

“3. Visual analysis can now determine that all scratch marks on victim neck and

under her chin area were caused to her on two separate occasions by someone other than

Defendant sometime after 9/9/04., as victim photo evidence definitively shows.

4 4. This newly discovered evidence that was always part of the official record was

not included at trial or 1st P.C. and this new claim is ‘prejudicial’ and if ever made in 1st

P.C. the outcome would have been different.

***

6. Forensic photo analysis not available at time of trial is now available and is being

requested by Defendant to prove his actual innocence. A visual analysis is all that is needed

here?”

¶ 13 In another section entitled “NEWLY DISCOVERED PHOTO EVIDENCE,” the defendant

alleges:

“Recently discovered by Defendant, looking at photo #8 both bottom parts of vertical and

diagonal scratch marks visually shows up in photo #8. You can see victim is intentionally

pressing her chin down towards her chest, wrinkling her neck, trying to hide her scratch

marks, but was unsuccessful. Everyone missed this cruicial [sic] evidence that ties every

photo that has scratch marks on her neck and under her chin area were caused to her after

9/9/04.”

The petition continues in a similar vein, with the defendant alleging that virtually all of the

evidence against him was false or fraudulent in some fashion. He further claimed that the state’s

attorney had placed the finding of great bodily harm in the record.

¶ 14 The trial court denied leave to file a successive postconviction petition. In a docket entry,

the trial court found that the defendant, while claiming to have newly discovered evidence, had

produced no new evidence “besides submitting some ‘new photos’ which don’t amount to much.”

The trial court found that alleging a “police conspiracy” was not new evidence. The trial court

5 observed that the defendant had focused his attention on his actual-innocence claim and had not

addressed the cause-and-prejudice test.

¶ 15 This court granted OSAD’s motion to file late notices of appeal in both cases. We also

consolidated the appeals.

¶ 16 ANALYSIS

¶ 17 OSAD concludes that there is no meritorious argument that the trial court erred in denying

leave to file a successive postconviction petition. OSAD, like the trial court, concludes that the

defendant has not made a sufficient claim of actual innocence. Indeed, the only evidence attached

to the petition was also attached to earlier pleadings. Moreover, the defendant has not alleged cause

or prejudice for failing to bring the claims in an earlier proceeding. Such a claim would fail in any

event because the defendant not only could have, but actually did, bring nearly identical claims in

multiple earlier proceedings. OSAD notes that, because the defendant raised the same or similar

arguments earlier, they are also barred by res judicata.

¶ 18 The Post-Conviction Hearing Act (Act) provides a mechanism by which a criminal

defendant may assert that his conviction resulted from a substantial denial of his constitutional

rights. 725 ILCS 5/122-1(a) et seq. (West 2022); People v. Delton, 227 Ill. 2d 247, 253 (2008).

Proceedings under the Act are collateral. People v. Edwards, 2012 IL 111711, ¶ 21. As a result,

issues that were decided on direct appeal or in previous collateral proceedings are barred by

res judicata (People v. Pitsonbarger, 205 Ill. 2d 444, 458 (2002)), and issues that could have been

raised earlier, but were not, are forfeited (People v. Blair, 215 Ill. 2d 427, 443-44 (2005)).

¶ 19 The Act contemplates the filing of only one petition and provides that “ ‘[a]ny claim of

substantial denial of constitutional rights not raised in the original or an amended petition is

waived.’ ” People v. Bailey, 2017 IL 121450, ¶ 15 (quoting 725 ILCS 5/122-3 (West 2014)). The

6 bar against successive proceedings will be relaxed, however, on two grounds. People v. Robinson,

2020 IL 123849, ¶ 42. The first is where a petitioner can establish cause and prejudice for failing

to assert a claim in an earlier proceeding. Id. (citing Pitsonbarger, 205 Ill. 2d at 459); see also 725

ILCS 5/122-1(f) (West 2022). The second is where a petitioner asserts a fundamental miscarriage

of justice based on actual innocence. Robinson, 2020 IL 123849, ¶ 42. 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.

Id. ¶ 47.

¶ 20 Here, the defendant appears to rely on an actual-innocence claim. However, the “new”

evidence had been included in the defendant’s previous filings. It is unclear from the record

whether the much-discussed photos were actually introduced into evidence at trial. Importantly,

however, the defendant concedes that they were “always part of the official record.” Thus, they

were not newly discovered.

¶ 21 In any event, the “new” evidence would not have changed the result. As OSAD points out,

evidence at trial included the victim’s testimony and testimony from two officers who entered the

home as the defendant was holding a knife to the victim’s throat. The officers testified that the

defendant cut the victim’s throat in their presence. Thus, the defendant’s obscure, often farfetched,

speculation about what can be inferred from the photos would not likely have persuaded the jury

to ignore the eyewitness testimony.

¶ 22 As OSAD points out, the defendant makes, at most, a halfhearted effort to meet the cause-

and-prejudice test. “Cause,” for purposes of the cause-and-prejudice test, has been defined as

“some objective factor external to the defense [that] impeded counsel’s efforts” to raise the claim

in an earlier proceeding. (Internal quotation marks omitted.) Pitsonbarger, 205 Ill. 2d at 460.

7 ¶ 23 The defendant identifies no “objective factor external to the defense” that prevented him

from raising these claims earlier. Indeed, many, if not all of them, were raised in some form in the

previous collateral proceedings. The defendant’s section 2-1401 petition made nearly identical

arguments that photos of the victim’s injuries were altered and proved that the defendant did not

cause the injuries. Similarly, arguments concerning the great bodily harm finding have been raised

in numerous prior pleadings.

¶ 24 The defendant essentially concedes that the issues raised in his current petition could have

been raised earlier. In connection with one argument, the defendant acknowledges that it was not

raised in the “1st P.C.,” but does not identify any external factor that prevented him from raising

it there. In connection with another argument, he contends that “[e]veryone missed” it. The only

person claiming not to have “missed” it is the defendant himself, and his failure to notice his latest

interpretation of the evidence is not “cause” for not raising the issue earlier. The “cause” test would

be a weak reed indeed if a defendant could, 20 years after his conviction, continue floating new

interpretations of the evidence, asserting as “cause” nothing more than his failure to notice them

earlier. Again, “cause” requires an objective factor external to the defense.

¶ 25 In his response, the defendant argues that res judicata does not apply but offers no reasoned

argument why this is so. He appears to contend that because he believes he is “right,” he should

be able to relitigate issues ad infinitum. This is not the law. See People v. Jones, 2024 IL App (5th)

231057-U, ¶ 27 (res judicata provides that when a court of competent jurisdiction renders a final

judgment on the merits of a claim, the judgment is conclusive of the parties’ rights and bars future

litigation of the same claim; claims will be considered the same if they arise from a single group

of operative facts, regardless of whether they assert different theories of relief (citing River Park,

Inc. v. City of Highland Park, 184 Ill. 2d 290, 311 (1998))).

8 ¶ 26 The trial court’s primary reasons for denying leave to file were that the defendant did not

produce newly discovered evidence that would tend to prove his actual innocence or establish

cause and prejudice for not raising the claims earlier. The defendant does not meaningfully address

these concerns and primarily reiterates his conspiracy claims.

¶ 27 CONCLUSION

¶ 28 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the trial court’s judgment.

¶ 29 Motion granted; judgment affirmed.