People v. Harris

2023 IL App (5th) 220470-U

Opinion

2023 IL App (5th) 220470-U NOTICE NOTICE Decision filed 08/23/23. The This order was filed under text of this decision may be NO. 5-22-0470 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Piatt County. ) v. ) No. 99-CF-8 ) ANDRE T. HARRIS, ) Honorable ) Karle E. Koritz, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Vaughan and McHaney concurred in the judgment.

ORDER

¶1 Held: The defendant’s appellate counsel is granted leave to withdraw, and the judgment of the circuit court is affirmed, where the defendant inarguably failed to satisfy the cause-and-prejudice test for his successive postconviction petition.

¶2 The defendant, Andre T. Harris, is serving an aggregate sentence of 38 years in prison for

three counts of attempt (first degree murder), one count of aggravated criminal sexual abuse, and

one count of obstruction of justice. Previously, this case has been before the Appellate Court,

Fourth District, and our supreme court. Now, this case is before this court on appeal from the

circuit court’s second-stage dismissal of the defendant’s amended petition for relief under the Post-

Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2022)). The defendant’s court-appointed

attorney on appeal, the Office of the State Appellate Defender (OSAD), has filed with this court a

motion for leave to withdraw as counsel, on the ground that this appeal lacks merit. See

1 Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD also has filed a memorandum of law in

support of its Finley motion. Having been properly served with copies of the Finley motion and

supporting memorandum, the defendant has filed with this court a response in the form of a pro se

brief. This court has examined the Finley motion and brief, the defendant’s response, the prior

decisions from prior appeals, and the complete record on appeal. This court finds that this appeal

does, indeed, lack merit. Accordingly, OSAD is granted leave to withdraw as counsel, and the

judgment of the circuit court of Piatt County, dismissing the defendant’s amended postconviction

petition, is affirmed.

¶3 BACKGROUND

¶4 The Trial, the Sentencing, and the First Direct Appeal

¶5 In October 1999, a jury found the defendant guilty of committing seven crimes in February

1999. The jury found him guilty of four counts of attempt (first degree murder) (720 ILCS 5/8-

4(a), 9-1(a)(1) (West 1998)), two counts of aggravated criminal sexual assault (id. § 12-14(a)(1),

(a)(2)), and obstruction of justice (id. § 31-4(a)). Subsequently, the circuit court sentenced him to

imprisonment for a term of 45 years on each of the four counts of attempt (first degree murder)

and both counts of aggravated criminal sexual assault, and for a term of 6 years for obstruction of

justice, with all sentences to be served concurrently. The defendant appealed from the judgment

of conviction.

¶6 On direct appeal, the Appellate Court, Fourth District, affirmed the defendant’s convictions

for three of the four counts of attempt (first degree murder), both counts of aggravated criminal

sexual assault, and the one count of obstruction of justice. However, the Fourth District vacated

the defendant’s conviction and sentence for one count of attempt (first degree murder), vacated his

sentences for the three affirmed counts of attempt (first degree murder) and the two counts of

2 aggravated criminal sexual assault, and reduced the defendant’s sentence for obstruction of justice

from a term of six years in prison to a term of three years. The Fourth District remanded the cause

to the circuit court with directions that it impose new sentences for the three affirmed counts of

attempt (first degree murder) and the two counts of aggravated criminal sexual assault. People v.

Harris, No. 4-99-1040 (2001) (unpublished order under Supreme Court Rule 23). Our supreme

court affirmed the Fourth District’s decision. People v. Harris, 203 Ill. 2d 111 (2003).

¶7 The Resentencing, and the Second Direct Appeal

¶8 Upon remand, on May 20, 2003, the circuit court complied with the Fourth District’s

mandate. The court imposed sentences of imprisonment for a term of nine years on each of the

three counts of attempt (first degree murder) and for terms of eight years and seven years on the

two counts of aggravated criminal sexual assault. The court ordered that these five prison

sentences, along with the three-year sentence for obstruction of justice (modified by the appellate

court on direct appeal), would all be served consecutively. The aggregate sentence was for 45

years. The prison sentences would be followed by mandatory supervised release for three years.

¶9 After resentencing, the defendant appealed (again) from the judgment of conviction. In

that appeal, the defendant’s appointed counsel filed an Anders motion to withdraw, on the ground

that the appeal presented no issue of arguable merit. By summary order, the Fourth District

Appellate Court granted the Anders motion and affirmed the judgment of conviction. People v.

Harris, No. 4-03-0502 (2005) (unpublished order under Supreme Court Rule 23).

¶ 10 Collateral Attacks, Including the Initial Postconviction Petition and Proceeding

¶ 11 On January 25, 2010, the defendant filed a pro se petition for relief from judgment under

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(f) (West 2010)). He claimed,

inter alia, that his two convictions for aggravated criminal sexual assault were “based on a single

3 act of penetration” of the victim’s vagina by the defendant’s penis, in violation of the one-act-one-

crime rule and in violation of the constitutional prohibition against double jeopardy. He sought a

new sentencing hearing to determine which conviction should stand. In February 2010, the State

filed a response to the section 2-1401 petition for relief from judgment, asking the circuit court to

deny it.

¶ 12 For approximately one year, nothing more happened in regard to the section 2-1401

petition. Then, in January 2011—one year after its filing—the defendant filed a pro se motion to

“call up” the petition. There followed many more delays related to who could represent the

defendant.

¶ 13 On December 10, 2012, the defendant filed a pro se petition for relief under the Post-

Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). It was the defendant’s initial

postconviction petition. In that postconviction petition, the defendant raised the same claims that

were raised in his section 2-1401 petition for relief from judgment (filed on January 25, 2010).

¶ 14 In January 2013, the court appointed counsel to represent the defendant. On June 3, 2013,

the defendant, though appointed counsel, filed a pleading that was styled, “Defendant’s Amended

Petition in the Trial Court for Relief from Judgment.” Despite this styling, the opening paragraph

of the pleading stated that it was filed “pursuant to Section 5/122-1(a)(1) of the Code of Criminal

Procedure (725 ILCS 5/122-1(a)(1))).” This amended postconviction petition was very similar to

the defendant’s pro se postconviction petition (as well as his pro se section 2-1401 petition for

relief from judgment). It claimed that both of the defendant’s convictions for aggravated criminal

sexual assault were “predicated upon the same act of sexual penetration” and therefore violated

the one-act-one-crime rule and the double-jeopardy clause.

4 ¶ 15 On August 22, 2013, the circuit court held a hearing on the “Defendant’s Amended Petition

in the Trial Court for Relief from Judgment.” The prosecutor, the defense attorney, and the

defendant were present. At the start of the hearing, the court noted that the document was “not

styled as a post-conviction proceeding.” However, the court also noted that the first paragraph of

the document “identifie[d] the statutory section of the conviction proceedings,” and for that reason,

the court would consider the document “a post-conviction proceeding.” Nobody expressed

disagreement with this approach. The parties stipulated that they would proceed immediately to

stage three of postconviction proceedings. The defendant’s appointed counsel argued that both

counts of aggravated criminal sexual assault were based upon “one act of sexual penetration,” and

that the one-act-one-crime rule required vacatur of one of those two counts, specifically the one

for which the defendant was sentenced to seven years of imprisonment. The State conceded that

the court needed to vacate one count of aggravated criminal sexual assault. The court vacated the

one count of aggravated criminal sexual assault and its seven-year sentence. The defendant was

left with three counts of attempt (first degree murder), with a sentence of nine years for each count;

one count of aggravated criminal sexual assault, with a sentence of eight years; and one count of

obstruction of justice, with a sentence of three years, with all the sentences consecutive. (The

aggregate prison sentence was 38 years.)

¶ 16 The defendant filed a notice of appeal, thus perfecting the appeal in No. 4-13-0745.

However, he later voluntarily dismissed that appeal.

¶ 17 The Second Postconviction Petition and Proceeding

¶ 18 On August 30, 2021, the defendant submitted to the clerk of the circuit court a pro se

“Petition for Post Conviction Relief,” and the circuit clerk file-stamped the petition. It was the

defendant’s second postconviction petition. In it, the defendant presented a variety of claims, viz.:

5 (1) during jury deliberations, the trial judge communicated with the jury, and consulted with the

prosecutor and the defense attorney about how to respond to jury requests, without the defendant

being present or even aware of those communications and consultations; (2) the circuit court’s

jurisdiction in the case was “improperly invoked” when the police officer who arrested the

defendant and the prosecutor “did not comply with statutory requisites” regarding arrest and

appearance before a judge for a judicial determination of probable cause; (3) the prosecutor made

improper, intentionally false, and inflammatory statements to the jury during closing argument;

(4) trial counsel provided constitutionally ineffective assistance when he failed to challenge the

defendant’s arrest and untimely probable-cause determination, when he failed to investigate

whether the defendant had a prior felony that could be used for impeachment of the defendant;

when he failed to protect the defendant’s right to be present when the judge was communicating

with the jury during deliberations, when he failed to object to the prosecutor’s inflammatory

closing arguments, and when he failed to “fully familiarize himself” with the sentencing

possibilities and to share that information with the defendant; and (5) direct-appeal counsel

provided ineffective assistance by not raising these issues. In the prayer for relief, the defendant

sought relief in the alternative, including dismissal of all charges and a new trial.

¶ 19 However, the defendant’s postconviction petition submitted on August 30, 2021, did not

even mention that it was, in fact, a successive postconviction petition. It did not include any facts

pertinent to a cause-and-prejudice analysis for successive postconviction petitions. See 725 ILCS

5/122-1(f) (West 2020); People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). It did not even allude

to cause or prejudice. Furthermore, the successive petition was not accompanied by a separate

motion for leave to file a successive postconviction petition.

6 ¶ 20 In addition, the successive petition did not include anything about the timing of the

petition’s filing (approximately 18 years after his resentencing on May 20, 2003), or any facts

relating to a lack of culpable negligence in the timing. See 725 ILCS 5/122-1(c) (West 2020).

¶ 21 In November 2021, the circuit court entered a written “Order Advancing Petition for Post-

Conviction Relief.” The gravamen of the order read as follows: “The court declines at [the] first

stage [of postconviction proceedings] to dismiss the Petition as frivolous or patently without merit.

The Petition is advanced to [the] second stage.” The court also appointed the public defender to

serve as the defendant’s postconviction counsel. The written order did not say anything about the

successive nature of the defendant’s petition. It did not include a cause-and-prejudice analysis for

successive petitions, or indeed any mention of either cause or prejudice.

¶ 22 On March 14, 2022, the defendant, by his postconviction counsel, filed an amended

postconviction petition. He presented three claims, viz.: (1) trial counsel was constitutionally

ineffective in four specific instances, which included his failure to object to the State’s introduction

of a knife and boxcutter; (2) the prosecutor made improper and inflammatory statements during

closing arguments, including a comment on the presumption of innocence; and (3) the trial court

deprived the defendant of a fair and impartial trial when it denied his motion in limine that sought

to exclude from evidence his prior conviction for criminal sexual assault. For relief, the defendant

sought an evidentiary hearing.

¶ 23 On the same day that the amended postconviction petition was filed, postconviction

counsel filed a certificate of compliance with Illinois Supreme Court Rule 651(c) (eff. July 1,

2017).

¶ 24 On June 27, 2022, the court held a second-stage hearing on the State’s motion to dismiss

the defendant’s postconviction petition. At the start of the hearing, the court asked the defendant

7 whether he understood why the State was asking the court to dismiss the case, and the defendant

answered in the affirmative. “Do you understand,” asked the court, “that the grounds for their

dismissal is that you haven’t plead any facts showing that you were not culpably negligent in filing

the petition so late? Do you understand that that’s their position?” The defendant answered, “I

do. Yes.” Following a short break, allowing postconviction counsel to speak with the defendant,

defense counsel stated that they were ready to proceed.

¶ 25 With that, the State argued as follows:

“I do believe that under the statute the defendant needs to show his delay in filing a post-

conviction petition must not be due to his culpable negligence. We are more than twenty

years past the conviction in this case and there’s already been an appeal that was timely

filed and heard and resolved. A prior post-conviction [petition] was already filed and

resolved. I don’t believe this post-conviction motion contains anything explaining the

delay. I believe that the delay is due to the defendant’s culpable negligence and that is a

grounds for dismissal at the second stage which is where we are at in these proceedings.”

Then, postconviction counsel argued that the court had discretion to hear the defendant’s amended

postconviction petition, and he urged the court to allow such a hearing.

¶ 26 The circuit court explained and announced its ruling on the State’s motion to dismiss, as

follows: “Because the defendant did not file the petition in a timely fashion, and because the

defendant did not claim actual innocence or allege any facts to show that he was not culpably

negligent for filing the petition so late, then the State’s motion to dismiss is well taken.” The court

granted the State’s motion, dismissing the amended postconviction petition.

¶ 27 The defendant perfected an appeal in this case. OSAD was appointed to represent him.

8 ¶ 28 ANALYSIS

¶ 29 As previously noted, OSAD has filed a Finley motion to withdraw as counsel, along with

a memorandum in support thereof. In its memorandum, OSAD discusses, but ultimately finds

meritless, two potential issues in this appeal, namely: (1) whether the postconviction petition was

timely, or whether the delay in filing was not due to the defendant’s own culpable negligence, and

(2) whether postconviction counsel provided the defendant with reasonable assistance. The

defendant has filed a 27-page pro se “Brief and Argument for the Petitioner” in response to

OSAD’s Finley motion. He argues that (1) even though his postconviction petition was filed late,

he was not culpably negligent, for he had relied on the “erroneous advice” of appellate counsel,

and (2) his postconviction counsel provided him with “ineffective assistance” when he failed to

amend the postconviction petition so as to allege that the defendant was not culpably negligent.

¶ 30 In short, OSAD and the defendant focus on the timing of the postconviction petition’s

filing, and on whether the late filing was due to the defendant’s culpable negligence. However,

this court sets aside the untimeliness issue, and focuses on a different issue, namely, whether the

defendant obtained leave of court to file a successive postconviction petition. This court may

affirm on any basis supported by the record, regardless of the reasoning employed below. People

v. Dorsey, 2021 IL 123010, ¶ 33. The denial of leave to file a successive postconviction petition

is reviewed de novo. People v. Ames, 2019 IL App (4th) 170569, ¶ 11.

¶ 31 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) allows a

criminal defendant to challenge his conviction based on a substantial denial of his constitutional

rights. Id. § 122-1(a)(1). The Act contains a three-stage procedure for relief. People v. Boclair,

202 Ill. 2d 89, 99 (2002). At the first stage, the circuit court independently determines whether

the defendant’s postconviction petition is frivolous or patently without merit and dismisses the

9 petition if it is. 725 ILCS 5/122-2.1(a)(2) (West 2020); Boclair, 202 Ill. 2d at 99-100. If the

petition is not dismissed, it proceeds to the second stage, where the court may appoint

postconviction counsel for the defendant, who may amend the petition, and the State may file a

motion to dismiss the petition. 725 ILCS 5/122-2.1(b), 122-5 (West 2020); Boclair, 202 Ill. 2d at

100. If the petition is not dismissed at the second stage, it proceeds to the third stage, where the

court conducts an evidentiary hearing on the merits of the petition. 725 ILCS 5/122-6 (West 2020);

Boclair, 202 Ill. 2d at 100.

¶ 32 However, there are limits on the number of times a defendant may avail himself of this

statutory mechanism. Both the Act and case law make clear that the filing of only one

postconviction petition is contemplated. See 725 ILCS 5/122-3 (West 2020) (any postconviction

claim that is “not raised in the original or an amended petition is waived”); People v. Morgan, 212

Ill. 2d 148, 153 (2004) (the Act “contemplates the filing of only one postconviction petition”).

There are situations when a second or successive postconviction petition can be filed. For one, the

bar against a second or successive petition may be lifted if a defendant claims actual innocence

based on newly-discovered evidence. See, e.g., People v. Taliani, 2021 IL 125891, ¶ 55.

However, the defendant in the instant case did not present an actual-innocence claim. Absent an

actual-innocence claim, the bar will be lifted only if the defendant shows cause and prejudice.

Morgan, 212 Ill. 2d at 153. As section 122-1(f) of the Act states: “Only one petition may be filed

by a petitioner *** without leave of the court. Leave of court may be granted only if a petitioner

demonstrates [1] cause for his or her failure to bring the claim in his or her initial post-conviction

proceedings and [2] prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2020).

¶ 33 In regard to the cause-and-prejudice exception to the waiver rule, “the Act and our case

law are clear that the circuit court must render a determination based on whether each individual

10 claim contained within that petition meets the cause-and-prejudice test.” People v. Thames, 2021

IL App (1st) 180071, ¶ 84. Furthermore, “[w]ithout an express determination, the successive

petition cannot be deemed ‘filed’ under the Act,” and the petition cannot advance to the second

stage. Id. ¶ 85. See also People v. LaPointe, 227 Ill. 2d 39, 44 (2007) (“the express leave of court”

is “mandated by section 122-1(f) of the Act”); People v. Tidwell, 236 Ill. 2d 150, 161 (2010) (“a

successive postconviction petition is not considered ‘filed’ for purposes of section 122-1(f), and

further proceedings will not follow, until leave is granted”).

¶ 34 In the instant case, the defendant filed his first or initial pro se postconviction petition back

in December 2012. It was the beginning of a postconviction proceeding that culminated, in August

2013, with a third-stage hearing and a ruling on the defendant’s petition. The pro se petition that

the defendant submitted to the circuit court on August 30, 2021, was his second postconviction

petition. The court should have treated it as a successive petition, performing a cause-and-

prejudice analysis. However, the court never ruled on cause and prejudice. Instead, the court

entered a written “Order Advancing Petition for Post-Conviction Relief,” wherein the court

“decline[d] at [the] first stage [of postconviction proceedings] to dismiss the Petition as frivolous

or patently without merit. The Petition is advanced to [the] second stage.” The court seemed to

treat the defendant’s successive postconviction petition as if it were his first postconviction

petition. The court acted as if the petition had already been filed with the court (instead of being

merely file-stamped by the clerk) and was ready for a first-stage decision on whether it would be

summarily dismissed or not. Simply “advancing” the petition to the second stage, without an

express ruling on cause and prejudice, was improper. An express ruling on cause and prejudice

was required.

11 ¶ 35 Given the content of the successive petition, no point would be served in remanding this

case to the circuit court for an express ruling on cause and prejudice. When the defendant

submitted his pro se successive postconviction petition to the court on August 30, 2021, it was

abundantly clear that the defendant did not include any facts pertinent to either cause or prejudice.

Cause and prejudice were not even alluded to in the successive petition. (Also, the defendant did

not accompany his successive petition with a separate motion for leave to file it.) The defendant

could not possibly have met the cause-and-prejudice test. In light of the complete absence of

allegations relating to cause or prejudice, only one finding and ruling could have been possible,

namely, the defendant failed to show cause or prejudice, and therefore leave to file a successive

petition must be denied.

¶ 36 CONCLUSION

¶ 37 Because the defendant failed to show cause and prejudice, he failed to lift the bar on his

successive postconviction petition. The court should have realized as much and should have

denied him leave to file the successive petition. Accordingly, OSAD’s Finley motion to withdraw

as counsel is allowed, and the judgment of the circuit court is affirmed.

¶ 38 Motion granted; judgment affirmed.