NO. 4-06-0658 Filed 3/11/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Macon County RICKY E. DANIEL, ) No. 91CF526 Defendant-Appellant. ) ) Honorable ) Scott B. Diamond, ) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
Defendant, Ricky E. Daniel, appeals the trial court's
dismissal of his second postconviction petition. Defendant,
however, failed to seek leave to file the petition prior to
filing his successive petition. Including a request for leave to
file a successive postconviction petition within the second
postconviction petition does not comport with the statutory
requirement that a petitioner seek leave prior to filing a
successive postconviction petition (725 ILCS 5/122-1(f) (West
2006)). Therefore, we affirm.
I. BACKGROUND
In August 1991, the State charged defendant with three
counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par.
9-1(a)(1),(a)(2)) arising out of the death of Earley Mae Taylor.
In November 1991, defendant entered an open plea of guilty to one count of first degree murder in exchange for dismissal of the
remaining two counts. Thereafter, in December 1991, the trial
court sentenced defendant to 50 years' imprisonment. Defendant
filed a motion to reconsider sentence, which the court denied.
Defendant did not file a direct appeal.
In December 1993, defendant filed a pro se petition for
postconviction relief. The trial court appointed counsel to
represent defendant on his petition. However, in May 1994,
appointed counsel moved to withdraw because defendant failed to
respond to counsel's attempts to contact him by mail. In
response, the State filed a motion to dismiss on the ground that
defendant had abandoned his petition.
In June 1994, after notice was given to defendant, the
trial court granted appointed counsel leave to withdraw. The
court also granted the State's motion to dismiss the
postconviction petition on the ground that defendant had
abandoned his petition by failing to "respond to communications
given." The clerk of the court sent to defendant, by certified
mail, a copy of the June 24, 1994, docket entry. No appeal was
filed.
On June 5, 2006, defendant filed his second
postconviction petition. Although not noted by the parties in
their respective briefs, a paragraph on page two of the
postconviction petition requested leave of court to file the
- 2 - successive petition. Defendant asserted the trial court
committed reversible and prejudicial error by allowing
postconviction counsel to withdraw and granting the State's
motion to dismiss the December 1993 petition. Defendant claimed
(1) counsel and the court should have known from the record that
defendant suffered from borderline mental retardation and had
extremely low intelligence, which prevented him from
understanding written correspondence; (2) the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2006))
does not permit appointed counsel to withdraw; and (3)
postconviction counsel operated under a conflict of interest
because he had ties to trial counsel (both worked in the Public
Defender's office).
On July 10, 2006, the trial court dismissed defendant's
second postconviction petition as frivolous and without merit.
The court also found that the dismissal of defendant's first
postconviction petition on the ground of abandonment was a
finding on the merits such that "the doctrines of res judicata
and waiver" (better referred to as "forfeiture") applied to
successive petitions. The court further found defendant failed
to meet the cause-and-prejudice test required for filing a
successive petition.
This appeal followed.
II. ANALYSIS
- 3 - When a defendant files a successive postconviction
petition, section 122-3 of the Act mandates that any claim not
raised in the original or amended petition is forfeited. 725
ILCS 5/122-3 (West 2006). This statutory bar is only relaxed
when fundamental fairness requires. People v. Flores, 153 Ill.
2d 264, 274, 606 N.E.2d 1078, 1083 (1992). In determining
whether fundamental fairness requires relaxation of the statutory
bar, reviewing courts use the "cause-and-prejudice" test. 725
ILCS 5/122-1(f) (West 2006); People v. Pitsonbarger, 205 Ill. 2d
444, 459, 793 N.E.2d 609, 621 (2002). Section 122-1(f) provides
as follows:
"Only one petition may be filed by a
petitioner under this [a]rticle without leave
of the court. Leave of court may be granted
only if a petitioner demonstrates cause for
his or her failure to bring the claim in his
or her initial post[]conviction proceedings
and prejudice results from that failure. For
purposes of this subsection (f): (1) a
prisoner shows cause by identifying an
objective factor that impeded his or her
ability to raise a specific claim during his
or her initial post[]conviction proceedings;
and (2) the prisoner shows prejudice by
- 4 - demonstrating that the claim not raised
during his or her initial post[]coinviction
proceedings so infected the trial that the
resulting conviction or sentence violated due
process." 725 ILCS 5/122-1(f) (West 2006).
See also People v. Morgan, 212 Ill. 2d 148, 153-54, 817 N.E.2d
524, 527 (2004) (defining cause and prejudice). In a non-death-
penalty case, a showing of actual innocence may also relax the
statutory bar. Pitsonbarger, 205 Ill. 2d at 459, 793 N.E.2d at
621. However, a defendant must seek leave of court before filing
a second or successive postconviction petition. 725 ILCS 5/122-
1(f) (West 2006). This court reviews the summary dismissal of a
postconviction petition de novo. People v. Leason, 352 Ill. App.
3d 450, 452, 816 N.E.2d 747, 751 (2004) (reviewing the dismissal
of a successive postconviction petition).
In his appellate brief, defendant concedes he did not
seek leave to file a successive postconviction petition but
argues that his petition alleged sufficient facts to establish
cause and prejudice to relax the forfeiture rule. The State
argues that the failure to seek leave to file the successive
petition warranted dismissal of defendant's second postconviction
petition, citing People v. DeBerry, 372 Ill. App. 3d 1056, 1059,
868 N.E.2d 382, 384 (2007) (requiring that a defendant seek leave
before filing a successive petition).
- 5 - Neither party notes the portion of defendant's second
postconviction petition that requests leave to file the succes-
sive petition. Nonetheless, this court, in DeBerry, held that
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NO. 4-06-0658 Filed 3/11/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Macon County RICKY E. DANIEL, ) No. 91CF526 Defendant-Appellant. ) ) Honorable ) Scott B. Diamond, ) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
Defendant, Ricky E. Daniel, appeals the trial court's
dismissal of his second postconviction petition. Defendant,
however, failed to seek leave to file the petition prior to
filing his successive petition. Including a request for leave to
file a successive postconviction petition within the second
postconviction petition does not comport with the statutory
requirement that a petitioner seek leave prior to filing a
successive postconviction petition (725 ILCS 5/122-1(f) (West
2006)). Therefore, we affirm.
I. BACKGROUND
In August 1991, the State charged defendant with three
counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, par.
9-1(a)(1),(a)(2)) arising out of the death of Earley Mae Taylor.
In November 1991, defendant entered an open plea of guilty to one count of first degree murder in exchange for dismissal of the
remaining two counts. Thereafter, in December 1991, the trial
court sentenced defendant to 50 years' imprisonment. Defendant
filed a motion to reconsider sentence, which the court denied.
Defendant did not file a direct appeal.
In December 1993, defendant filed a pro se petition for
postconviction relief. The trial court appointed counsel to
represent defendant on his petition. However, in May 1994,
appointed counsel moved to withdraw because defendant failed to
respond to counsel's attempts to contact him by mail. In
response, the State filed a motion to dismiss on the ground that
defendant had abandoned his petition.
In June 1994, after notice was given to defendant, the
trial court granted appointed counsel leave to withdraw. The
court also granted the State's motion to dismiss the
postconviction petition on the ground that defendant had
abandoned his petition by failing to "respond to communications
given." The clerk of the court sent to defendant, by certified
mail, a copy of the June 24, 1994, docket entry. No appeal was
filed.
On June 5, 2006, defendant filed his second
postconviction petition. Although not noted by the parties in
their respective briefs, a paragraph on page two of the
postconviction petition requested leave of court to file the
- 2 - successive petition. Defendant asserted the trial court
committed reversible and prejudicial error by allowing
postconviction counsel to withdraw and granting the State's
motion to dismiss the December 1993 petition. Defendant claimed
(1) counsel and the court should have known from the record that
defendant suffered from borderline mental retardation and had
extremely low intelligence, which prevented him from
understanding written correspondence; (2) the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 2006))
does not permit appointed counsel to withdraw; and (3)
postconviction counsel operated under a conflict of interest
because he had ties to trial counsel (both worked in the Public
Defender's office).
On July 10, 2006, the trial court dismissed defendant's
second postconviction petition as frivolous and without merit.
The court also found that the dismissal of defendant's first
postconviction petition on the ground of abandonment was a
finding on the merits such that "the doctrines of res judicata
and waiver" (better referred to as "forfeiture") applied to
successive petitions. The court further found defendant failed
to meet the cause-and-prejudice test required for filing a
successive petition.
This appeal followed.
II. ANALYSIS
- 3 - When a defendant files a successive postconviction
petition, section 122-3 of the Act mandates that any claim not
raised in the original or amended petition is forfeited. 725
ILCS 5/122-3 (West 2006). This statutory bar is only relaxed
when fundamental fairness requires. People v. Flores, 153 Ill.
2d 264, 274, 606 N.E.2d 1078, 1083 (1992). In determining
whether fundamental fairness requires relaxation of the statutory
bar, reviewing courts use the "cause-and-prejudice" test. 725
ILCS 5/122-1(f) (West 2006); People v. Pitsonbarger, 205 Ill. 2d
444, 459, 793 N.E.2d 609, 621 (2002). Section 122-1(f) provides
as follows:
"Only one petition may be filed by a
petitioner under this [a]rticle without leave
of the court. Leave of court may be granted
only if a petitioner demonstrates cause for
his or her failure to bring the claim in his
or her initial post[]conviction proceedings
and prejudice results from that failure. For
purposes of this subsection (f): (1) a
prisoner shows cause by identifying an
objective factor that impeded his or her
ability to raise a specific claim during his
or her initial post[]conviction proceedings;
and (2) the prisoner shows prejudice by
- 4 - demonstrating that the claim not raised
during his or her initial post[]coinviction
proceedings so infected the trial that the
resulting conviction or sentence violated due
process." 725 ILCS 5/122-1(f) (West 2006).
See also People v. Morgan, 212 Ill. 2d 148, 153-54, 817 N.E.2d
524, 527 (2004) (defining cause and prejudice). In a non-death-
penalty case, a showing of actual innocence may also relax the
statutory bar. Pitsonbarger, 205 Ill. 2d at 459, 793 N.E.2d at
621. However, a defendant must seek leave of court before filing
a second or successive postconviction petition. 725 ILCS 5/122-
1(f) (West 2006). This court reviews the summary dismissal of a
postconviction petition de novo. People v. Leason, 352 Ill. App.
3d 450, 452, 816 N.E.2d 747, 751 (2004) (reviewing the dismissal
of a successive postconviction petition).
In his appellate brief, defendant concedes he did not
seek leave to file a successive postconviction petition but
argues that his petition alleged sufficient facts to establish
cause and prejudice to relax the forfeiture rule. The State
argues that the failure to seek leave to file the successive
petition warranted dismissal of defendant's second postconviction
petition, citing People v. DeBerry, 372 Ill. App. 3d 1056, 1059,
868 N.E.2d 382, 384 (2007) (requiring that a defendant seek leave
before filing a successive petition).
- 5 - Neither party notes the portion of defendant's second
postconviction petition that requests leave to file the succes-
sive petition. Nonetheless, this court, in DeBerry, held that
leave must be obtained before the successive petition is filed,
thus suggesting that a request for leave within the successive
petition itself is insufficient:
"[A] defendant must obtain leave of court
before filing a successive petition, and if a
defendant fails to do so, the court, whether
sua sponte or on the State's motion, should
dismiss any such petition. In taking this
action, the court need not--and should not--
concern itself with the merits of any claims,
contentions, or arguments that the petition
contains. Section 122-1(f) constitutes a
procedural hurdle to any such consideration
that the legislature has intentionally chosen
to impose regarding such petitions."
(Emphasis in original.) DeBerry, 372 Ill.
App. 3d at 1060, 868 N.E.2d at 384.
The DeBerry court affirmed the trial court's dismissal because
the petitioner failed to seek leave to file the successive
petition. DeBerry, 372 Ill. App. 3d at 1060, 868 N.E.2d at 384.
Here, although defendant requested leave within his
- 6 - petition, he did not seek leave prior to filing his successive
petition. See People v. LaPointe, 227 Ill. 2d 39, 42, 879 N.E.2d
275, 277 (2007) (finding that a successive postconviction
petition is not even deemed filed unless the trial court grants
leave to file the petition). The requirement that a party
request leave separately and not within the petition is necessary
because (1) the petition is not deemed filed unless leave is
granted and (2) the court could easily miss the request for leave
buried within a petition, as both parties apparently did in this
case. Therefore, the trial court's dismissal is affirmed.
This court also notes that currently pending
legislation, House Bill 3452, seeks to amend section 122-1(f) to
specifically provide that a petitioner seek leave of court prior
to filing a postconviction petition. The proposed amendment
would provide as follows:
"A petitioner must seek leave of court by
filing a motion when he or she sends his or
her proposed subsequent petition. The
circuit court must review the motion within
30 days of its receipt by the Circuit Court
Clerk. If the court grants the motion for
leave to file the petition, the Circuit Court
Clerk shall docket it, and the petition shall
- 7 - proceed under [s]ection 122-2.1 of this
[a]rticle. If the court denies the motion,
the Circuit Court Clerk shall notify the
petitioner by certified mail within 10 days
of the entry of the order." 95th Ill. Gen.
Assem., House Bill 3452, §5, 2007 Sess.
Should this pending legislation pass, it will add much needed
clarity to this area of the law.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we award the State its $50
statutory assessment against defendant as costs of this appeal.
Affirmed.
KNECHT and STEIGMANN, JJ., concur.
- 8 -