People v. Holmes

2024 IL App (5th) 230121-U

• Court: Appellate Court of Illinois
• Decided: February 13, 2024
• Docket: 5-23-0121
• Status: Unpublished

Opinion

2024 IL App (5th) 230121-U NOTICE NOTICE Decision filed 02/13/24. The This order was filed under text of this decision may be NO. 5-23-0121 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, ) Macon County. ) v. ) No. 97-CF-112 ) GREGORY L. HOLMES, ) Honorable ) Thomas E. Griffith, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

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

ORDER

¶1 Held: The circuit court did not err in denying defendant leave to file a successive postconviction petition where defendant did not satisfy the cause-and-prejudice test and, in any event, the proposed petition did not allege any constitutional violation occurring in this case, but raised arguments related to a separate but related case. As any argument to the contrary would lack merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.

¶2 Defendant, Gregory L. Holmes, appeals the circuit court’s order denying leave to file a

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

Appellate Defender (OSAD), has concluded that there is no reasonably meritorious argument that

the circuit court erred. Accordingly, it has filed a motion to withdraw as counsel along with a

supporting memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified

defendant of its motion, and this court has provided him an opportunity to file a response, but he

1 has not done so. After considering the record on appeal and OSAD’s memorandum and supporting

brief, we agree that this appeal presents no reasonably meritorious issues. Thus, we grant OSAD

leave to withdraw and affirm the circuit court’s judgment.

¶3 BACKGROUND

¶4 Defendant pleaded guilty to burglary in case No. 97-CF-112 and was sentenced to 24

months’ probation. Shortly thereafter, he was charged in case No. 97-CF-1130 with numerous

offenses, including home invasion, armed robbery, and aggravated criminal sexual assault.

Following a jury trial, he was convicted of 14 offenses and sentenced to an aggregate 110 years in

prison. The court also revoked his probation in No. 97-CF-112 and sentenced him to five years’

imprisonment, to be served concurrently with his sentence in No. 97-CF-1130.

¶5 Defendant did not directly appeal in case No. 97-CF-112. He filed a postconviction petition

that included both case numbers in the caption. However, he made no arguments relating to 97-

CF-112. The court denied the petition following a second-stage hearing and the Fourth District

affirmed. People v. Holmes, No. 4-02-0811 (Aug. 19, 2003) (unpublished order under Illinois

Supreme Court Rule 23).

¶6 In 2022, defendant filed a motion for leave to file a successive postconviction petition.

Although the caption contained both case numbers, the only substantive arguments related to case

No. 97-CF-1130. In an order relating only to No. 97-CF-112 and included in the record for that

case, the circuit court denied leave to file. Defendant timely appealed.

¶7 ANALYSIS

¶8 OSAD contends that there is no reasonably meritorious argument that the circuit court erred

in denying defendant leave to file a successive postconviction petition in case No. 97-CF-112 for

2 the simple reason that the proposed petition did not include any allegations relating to or seek any

relief in that case. We agree.

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

a mechanism by which a criminal defendant may assert that his conviction resulted from a

substantial denial of his constitutional rights. Id. § 122-1(a); People v. Delton, 227 Ill. 2d 247, 253

(2008). The Act contemplates the filing of only one postconviction petition and provides in section

122-3 (725 ILCS 5/122-3 (West 2020)) 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. To file a successive petition, a defendant must obtain leave of court, which may be

granted where the defendant demonstrates cause for his or her failure to bring the claim in his or

her initial postconviction proceedings and prejudice results from that failure. 725 ILCS 5/122-1(f)

(West 2020).

¶ 10 Defendant made no attempt to satisfy the cause and prejudice requirements for filing a

successive petition. Although he made no substantive arguments relating to No. 97-CF-112, given

that the court revoked his probation on the basis of the offenses of which he was convicted in No.

97-CF-1130, it is conceivable that reversing those convictions might require vacating his sentence

in No. 97-CF-112. 1 However, as we have also concluded that defendant’s most recent petition

provides no basis for reversing his convictions in No. 97-CF-1130 (People v. Holmes, 2024 IL

App (5th) 230122-U), there is no basis for disturbing his sentence in No. 97-CF-112.

1 The Illinois Department of Corrections website indicates that defendant has not completed his sentence in No. 97-CF-112. 3 ¶ 11 CONCLUSION

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

affirm the circuit court’s judgment.

¶ 13 Motion granted; judgment affirmed.