NOTICE 2021 IL App (4th) 190283-U FILED This Order was filed under July 13, 2021 Supreme Court Rule 23 and Carla Bender is not precedent except in the NO. 4-19-0283 4th District Appellate limited circumstances al- Court, IL lowed under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County CLIFTON ELY, ) No. 81CF183 Defendant-Appellant. ) ) Honorable ) Robert K. Adrian, ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice Holder White concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed the trial court’s judgment because the trial court appropriately reconsidered and reversed its interlocutory order granting defendant leave to file his successive postconviction petition.
¶2 In July 1981, the State charged defendant, Clifton Ely, with two counts of home
invasion, two counts of armed robbery, three counts of armed violence, and one count of burglary.
The charges alleged that defendant and his codefendant, Carl Griggsby, broke into the home of
Givi and Rusudan Gabliani and robbed them. Rusudan also accused defendant of sexually
assaulting her, but defendant was never charged with that sexual assault.
¶3 In September 1981, defendant pleaded guilty to two counts, armed robbery and
armed violence, in exchange for the dismissal of all other counts in this case and the dismissal of
an unrelated aggravated battery charge. In October 1981, the trial court sentenced defendant to 60
years in prison for each count, to be served concurrently. ¶4 In August 2018, defendant filed pro se an amended successive postconviction
petition. Defendant argued (1) he “had a constitutional right” to address the Rule 604(d) certificate
filed by David Farmer, appointed counsel for a successive postconviction petition defendant filed
in 2002, (2) the ruling in People v. Easton, 2017 IL App (2d) 141180, provided him an
opportunity to attack Farmer’s Rule 604(d) certificate, (3) the trial court erred by dismissing
defendant’s original petition “where a review of the record did support [defendant’s] claim of
ineffective assistance of counsel” because counsel “never filed a Supreme Court Rule 604(d)
certificate,” and (4) the new rule in Easton “effects the decision in [defendant’s] case as the
decision in Easton is retroactive.”
¶5 In October 2018, Judge Wellborn recused herself from the case because of a
conflict. The case was reassigned to Judge Robert Adrian. In May 2019, the trial court conducted
a hearing at which the court said it had reviewed the original order granting defendant leave to file
his successive postconviction petition. The court stated it disagreed with the order allowing
defendant to file his successive postconviction petition and moreover, dismissed the petition,
finding it frivolous and without merit.
¶6 Defendant appeals, arguing that (1) Judge Adrian improperly reversed Judge
Wellborn’s order granting defendant leave to file his successive postconviction petition and (2) the
trial court erred when it refused to investigate (a) defendant’s request to represent himself and
(b) whether defendant had knowingly withdrawn his earlier request to represent himself. We
disagree and affirm.
¶7 I. BACKGROUND
¶8 A. The Information
¶9 In July 1981, the State charged defendant with two counts of home invasion, two
-2- counts of armed robbery, three counts of armed violence, and one count of burglary. The charges
alleged that defendant and his codefendant broke into the home of Givi and Rusudan Gabliani and
robbed them.
¶ 10 B. The Guilty Plea
¶ 11 In September 1981, the trial court conducted defendant’s plea hearing at which the
State provided a factual basis for the pleas which established that defendant and Griggsby forced
their way into the Gablianis’s home at gunpoint on the evening of June 30, 1981, and proceeded
to tie up the Gablianis and loot their residence. In summarizing the testimony that would have been
presented, the state’s attorney stated that Rusudan would testify that she was sexually assaulted by
defendant before he left her residence. The State noted that defendant had not been charged with
any crimes related to the sexual assault.
¶ 12 Defendant’s attorney objected to the state’s attorney referencing an alleged sexual
assault because “there is no charge of that nature having been made at any time with reference to
the facts we are here about.” The trial court overruled defendant’s objection. Defendant persisted
in his request to change his plea from not guilty to guilty.
¶ 13 Defendant did not negotiate an agreement as to his sentence, and the trial court
admonished him that he could receive an extended-term sentence of between 6 and 60 years in
prison.
¶ 14 Defendant pleaded guilty to two counts, armed robbery and armed violence, in
exchange for the dismissal of all other counts in this case and the dismissal of an unrelated
aggravated battery charge.
¶ 15 C. The Sentencing Hearing
¶ 16 In October 1981, the trial court conducted defendant’s sentencing hearing. At the
-3- beginning of the hearing, the court again admonished defendant that he faced an extended-term
sentence if the court found that his behavior was brutal and heinous, after which defendant
persisted in his guilty plea.
¶ 17 The State attempted to introduce evidence of an uncharged sexual assault that
occurred during the robbery to prove the use of force. Defendant objected, arguing that he was
never charged with sexually assaulting Rusudan and that evidence of an uncharged sexual assault
should not be allowed. The State argued that “for the Court to intelligently sentence here the Court
has to view the totality of force applied to the victims by both [defendant] and his co-defendant
for whom he is accountable. If that force includes rape, that’s force.” The court allowed the
evidence of a sexual assault.
¶ 18 The presentence investigation report (PSI) contained a summary of the police
reports that detailed the police investigation. The PSI relayed the police interview with the
Gablianis, including how they were both beaten and robbed by two assailants. “The Gablianis
described the men as both being black, males, one being appx. 6 ft. 1 in. tall, muscular, lean ***.
The other is smaller in build, appx. 5 ft. 8 in. tall ***.”
¶ 19 The PSI contained a further report the police wrote about an interview with the
Gablianis three days after the attack in which Rusudan provided more details about how the men
attacked and threatened her and her husband. Rusudan explained that the men tied her up and the
taller man sexually assaulted her before wiping his penis on Givi’s face. Givi also reported that
the rapist was the taller man.
¶ 20 Michael Shih, Rusudan’s obstetrician and gynecologist, testified that he treated
Rusudan for vaginal bleeding that lasted for one week following the attack.
¶ 21 Givi and Rusudan testified about the attack and detailed their injuries. Rusudan
-4- testified that the taller man broke her nose and sexually assaulted her. Deputy Jon McCoy testified
that defendant was the taller man.
¶ 22 Griggsby testified in exchange for a four-year sentence. Griggsby testified that he
was about 5 feet 8 inches tall. Griggsby said he left defendant alone in the house when Griggsby
moved the car. Griggsby denied sexually assaulting Rusudan.
¶ 23 In allocution, defendant admitted to the home invasion but denied sexually
assaulting Rusudan.
¶ 24 The trial court found that defendant’s use of force throughout his crimes was brutal
and heinous, accompanied by wanton cruelty. The court sentenced defendant to 60 years in prison
for each count, to be served concurrently.
¶ 25 In November 1981, defendant moved to withdraw his guilty plea. Defendant argued
that because he was never charged with sexually assaulting Rusudan, evidence of the uncharged
sexual assault was not properly before the trial court at his sentencing. Thus, the evidence could
not be used to enhance his sentence. The trial court denied defendant’s motion. This court affirmed
defendant’s conviction on appeal. People v. Ely, 107 Ill. App. 3d 102 (1982).
¶ 26 D. Defendant’s Subsequent Filings
¶ 27 In December 1982, defendant filed a motion to reduce his sentence, citing his youth
and rehabilitative potential. The trial court dismissed his motion in January 1983.
¶ 28 In August 1991, defendant filed a postconviction petition in which he alleged that
testimony regarding an uncharged sexual offense was improperly used against him at sentencing
and his attorney provided ineffective assistance of counsel. The trial court summarily dismissed
defendant’s petition at the first stage, and the appellate court affirmed the trial court’s judgment
on appeal. People v. Ely, 227 Ill. App. 3d 1113 (1992) (table) (unpublished order under Supreme
-5- Court Rule 23).
¶ 29 In April 2002, defendant filed a successive postconviction petition, arguing that the
trial court’s finding of brutal and heinous use of force at sentencing violated Apprendi v. New
Jersey, 530 U.S. 466 (2000), and, again, that the trial court should not have heard evidence related
to an uncharged sexual assault at sentencing. The trial court allowed the petition and appointed
counsel, David Farmer, who filed an amended petition in September 2002, in which he raised the
same two issues.
¶ 30 In November 2002, the State filed what was effectively a motion to dismiss
defendant’s 2002 successive petition. In January 2003, Farmer filed a document titled “Counsel
for Defendant’s Rule 604(d) Certificate,” which averred that he complied with the requirements
of Illinois Supreme Court Rule 604(d) (eff. Nov. 1, 2000). That same day, the trial court conducted
a hearing at which it dismissed defendant’s petition. Defendant appealed, and the Office of the
State Appellate Defender (OSAD) was appointed as counsel for defendant. In January 2005,
OSAD moved to withdraw. This court granted the motion and dismissed the appeal. People v. Ely,
353 Ill. App. 3d 1113 (2005) (table) (unpublished order under Supreme Court Rule 23).
¶ 31 In December 2009, defendant filed a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)), asserting that he
was not informed he was subject to increased penalties until after he entered his plea, that the trial
court improperly relied on an uncharged offense when imposing an extended-term sentence, and
that he was not admonished about his three-year term of mandatory supervised release. In February
2010, the court dismissed defendant’s section 2-1401 petition because the issues defendant raised
had been raised in previous pleadings and denied. Defendant appealed, counsel was appointed,
counsel moved to withdraw, and this court granted the motion and affirmed the trial court’s
-6- judgment. People v. Ely, 409 Ill. App. 3d 1184 (2011) (table) (unpublished order under Supreme
Court Rule 23).
¶ 32 In June 2013, defendant filed a motion to correct his mittimus nunc pro tunc,
asserting that the mandatory supervised release statute conflicted with the statute setting the Class
X sentencing range. In July 2013, the trial court dismissed the motion.
¶ 33 E. The Postconviction Petition at Issue in This Case
¶ 34 In October 2017 (without seeking leave of the court), defendant filed pro se a
successive postconviction petition in which he argued (1) the trial court erred by dismissing his
“original” 1991 postconviction petition as frivolous where counsel who represented defendant on
his motion to withdraw his guilty plea failed to file a certificate pursuant to Rule 604(d), showing
ineffective assistance of counsel and (2) the holding in Easton, finding Rule 604(d) applied
retroactively, effected his case in that the record did not show that transcripts of his plea or
sentencing hearings were available for counsel’s review at the hearing on the motion to withdraw
his plea and vacate his sentence.
¶ 35 The matter was initially assigned to Judge Debra Wellborn, who granted defendant
leave to file his successive postconviction petition and appointed counsel for defendant.
¶ 36 In June 2018, the trial court conducted a hearing at which appointed counsel
advised the court she and defendant were “not in agreement” as to how to proceed with defendant’s
successive postconviction petition. Defendant told the court that his 1991 postconviction petition
alleged ineffective assistance of counsel based on appointed counsel’s failure to file a Rule 604(d)
certificate. Defendant alleged that “somebody tried to clean the record up” by filing a Rule 604(d)
certificate on January 3, 2003, the date of the hearing at which the court dismissed defendant’s
first successive postconviction petition. Defendant wished to have the ineffective assistance of
-7- counsel issue he raised in his 1991 postconviction petition included in his successive
postconviction petition and addressed by the court.
¶ 37 Defendant’s appointed counsel moved to withdraw from the case because she had
no meritorious issues with which to amend defendant’s successive postconviction petition, and
defendant asked for new counsel. The court informed defendant he could either hire private
counsel or proceed pro se. Following the court’s inquiry as to defendant’s ability to represent
himself, defendant elected to proceed pro se and signed a waiver of counsel acknowledgement.
¶ 38 In August 2018, defendant filed pro se an amended successive postconviction
petition in which he raised two additional issues: (1) whether defendant had a “constitutional right”
to address Farmer’s Rule 604(d) certificate and (2) whether Easton provided defendant the ability
to “attack” Farmer’s Rule 604(d) certificate. Defendant noted that Farmer may have filed a Rule
604(d) certificate but defendant did not receive a copy of the certificate until June 2018, when his
former counsel gave it to defendant for his review. Defendant also denied that he corresponded
with Farmer about his contentions of error, and he said he would have raised additional issues.
¶ 39 In October 2018, Judge Wellborn recused herself from the case because her
husband was the former state’s attorney who responded to defendant’s 2002 successive
postconviction petition. The case was assigned to Judge Robert Adrian. In October 2018, Judge
Adrian reappointed the public defender for defendant without a hearing on the matter.
¶ 40 In May 2019, the trial court conducted a hearing at which the court said that
defendant could not speak because he was represented by counsel. The court said it had reviewed
the original order granting defendant leave to file a successive postconviction petition and he did
not “believe that the judge who entered that order reviewed the case under the right criteria for
that.” The court reconsidered the request and found that nothing in the successive petition existed
-8- that would allow defendant to file the petition. The court also found that defendant never filed a
motion for leave to file his successive postconviction petition, and thus, defendant was “never
properly granted leave.” Ultimately, the court concluded that the petition was “patently frivolous
and without any substance or without any merit” and dismissed the petition.
¶ 41 This appeal followed.
¶ 42 II. ANALYSIS
¶ 43 Defendant appeals, arguing that (1) Judge Adrian improperly reversed Judge
Wellborn’s order granting defendant leave to file his successive postconviction petition and (2) the
trial court erred when it refused to investigate (a) defendant’s request to represent himself and
(b) whether defendant had knowingly withdrawn his earlier request to represent himself. We
¶ 44 A. Judge Adrian Correctly Reversed Judge Wellborn’s Order
¶ 45 Defendant argues that Judge Adrian erred when he reversed Judge Wellborn’s prior
order granting leave for defendant to file a successive postconviction petition because (1) Judge
Adrian did not provide defendant sufficient notice or opportunity to be heard, thus depriving
defendant of due process, (2) Judge Adrian dismissed the petition despite it having made a
prima facie showing of cause and prejudice, and (3) defendant’s earlier postconviction
proceedings were flawed. Defendant also argues that his petition should be remanded and assigned
to a new judge, but because we affirm the trial court, we need not address this argument.
¶ 46 1. The Trial Court Did Not Deprive Defendant of Due Process
¶ 47 Defendant argues that he was deprived of due process when Judge Adrian did not
provide him sufficient notice and opportunity to be heard prior to reversing Judge Wellborn’s order
granting defendant leave to file his successive postconviction petition.
-9- ¶ 48 a. The Law
¶ 49 “[A] court in a criminal case has the inherent power to reconsider and correct its
rulings, and this power extends to interlocutory rulings.” People v. Johnson, 2017 IL 120310, ¶ 33.
A court may review, modify, or vacate an interlocutory order at any time prior to the entry of a
final judgment. Id.
¶ 50 b. This Case
¶ 51 We note defendant cites numerous cases which hold that a defendant’s due process
rights are violated when the trial court grants the State’s motion to dismiss, or otherwise dismisses,
defendant’s petition at the second stage without proper notice or opportunity to be heard. However,
that is not the procedural posture of this case.
¶ 52 In this case, Judge Adrian did not dismiss defendant’s petition at the second stage
but instead reconsidered Judge Wellborn’s prior order granting defendant leave to file his
successive petition. Defendant does not cite any case that supports the notion that this kind of
reconsideration violates defendant’s due process rights.
¶ 53 We conclude that pursuant to the court’s inherent power to reconsider its own
rulings, Judge Adrian was entitled to reconsider and vacate Judge Wellborn’s order granting
defendant leave to file his successive postconviction petition.
¶ 54 2. The Trial Court Correctly Dismissed Defendant’s Petition Because
Defendant Failed to Show Cause and Prejudice
¶ 55 Of course, just because the trial court can reconsider and vacate its own order does
not mean that was the correct decision. Defendant argues that the trial court erred by dismissing
defendant’s successive petition because the petition made a prima facie showing of cause and
prejudice. We disagree and conclude that the trial court correctly dismissed the petition because it
- 10 - did not establish cause and prejudice.
¶ 56 a. The Law
¶ 57 The Act explains the criteria for obtaining leave to file a successive postconviction
petition as follows:
“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) a
prisoner shows prejudice by demonstrating that the claim not raised during his or
her initial post-conviction proceedings so infected the trial that the resulting
conviction or sentence violated due process.” 725 ILCS 5/122-1(f) (West 2016).
¶ 58 The Act contemplates the filing of only one postconviction petition and expressly
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)). A defendant not only has the burden to obtain leave of court but also must
submit enough in the way of documentation to allow a circuit court to make that determination.
People v. Edwards, 2012 IL 111711, ¶ 24.
¶ 59 A defendant does not need to “establish cause and prejudice conclusively prior to
being granted leave to file a successive petition.” People v. Smith, 2014 IL 115946, ¶ 29. We note
the cause-and-prejudice test presents a higher burden than the frivolous-or-patently-without-merit
standard applied at first-stage proceedings. Id. ¶ 35. A defendant “must submit enough in the way
of documentation to allow a circuit court to make [the cause-and-prejudice] determination.”
- 11 - (Internal quotation marks omitted.) Id. ¶ 30. A trial court should deny leave to file a successive
postconviction petition “when it is clear, from a review of the successive petition and the
documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter
of law or where the successive petition with supporting documentation is insufficient to justify
further proceedings.” Id. ¶ 35. “In other words, the court must determine whether defendant has
made a prima facie showing of cause and prejudice.” Bailey, 2017 IL 121450, ¶ 24.
¶ 60 b. This Case
¶ 61 Defendant’s October 2018 pro se amended successive postconviction petition
argued (1) he “had a constitutional right” to address the Rule 604(d) certificate filed by David
Farmer, appointed counsel for a successive postconviction petition defendant filed in 2002, (2) the
ruling in Easton provided him an opportunity to attack Farmer’s Rule 604(d) certificate, (3) the
trial court erred by dismissing defendant’s original petition “where a review of the record did
support [defendant’s] claim of ineffective assistance of counsel” because counsel “never filed a
Supreme Court Rule 604(d) certificate,” and (4) the new rule in Easton “effects the decision in
[defendant’s] case as the decision in Easton is retroactive.” However, all of defendant’s arguments
related to the Rule 604(d) certificate are predicated on the assumption that Easton applied to
defendant’s case. Therefore, defendant’s argument, in summary, is that (1) the trial court erred by
dismissing defendant’s 1991 postconviction petition and (2) the appellate court’s holding in
Easton affects the decision in defendant’s case.
¶ 62 In response to defendant’s first argument, the State asserts that defendant failed to
establish a prima facie showing of cause and prejudice because “he is essentially requesting this
Court to reconsider its prior ruling.” We agree. Defendant was not prevented from bringing up this
claim earlier—in fact, he did bring it up, this court rejected it, and he now seeks another bite at the
- 12 - apple. Successive postconviction petitions are for new claims, not for petitioners to fight
yesterday’s war in perpetuity.
¶ 63 In response to defendant’s second argument, the State observes that the Illinois
Supreme Court reversed the appellate court’s holding in Easton, stating, “Therefore, the appellate
court erred holding that the amended version of Rule 604(d) applied retroactively to defendant’s
case on appeal.” People v. Easton, 2018 IL 122187, ¶ 23. For that reason, defendant’s claims based
on the appellate court’s decision in Easton clearly fail as a matter of law.
¶ 64 B. The Trial Court Did Not Err When It Did Not Investigate Defendant’s
Request to Represent Himself
¶ 65 Last, defendant argues that the trial court erred because it refused to investigate
(1) defendant’s request to represent himself and (2) whether defendant had knowingly repudiated
his earlier request to represent himself. Because the trial court properly reconsidered the decision
granting leave for defendant to file his successive postconviction petition and then dismissed the
petition, both of defendant’s arguments are moot. “An issue on appeal is moot where it no longer
presents an actual controversy.” People v. Harvey, 2018 IL 122325, ¶ 19. For that reason, we need
not consider defendant’s arguments. See id.
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated, we affirm.
¶ 68 Affirmed.
- 13 -