People v. Hotz

2020 IL App (5th) 160050-U

• Court: Appellate Court of Illinois
• Decided: February 27, 2020
• Docket: 5-16-0050
• Status: Unpublished

Opinion

2020 IL App (5th) 160050-U NOTICE NOTICE Decision filed 02/27/20. The This order was filed under text of this decision may be NO. 5-16-0050 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for IN THE by any party except in the Rehearing or the disposition of 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, ) Madison County. ) v. ) No. 01-CF-2298 ) RICKY ALLEN HOTZ, ) Honorable ) Jennifer L. Hightower, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Presiding Justice Welch and Justice Overstreet concurred in the judgment.

ORDER

¶1 Held: Where the defendant completely failed to establish that he was entitled to leave to file his successive postconviction petition, and any argument to the contrary would lack merit, the defendant’s appointed appellate counsel is granted leave to withdraw, and the circuit court’s order denying the defendant leave to file his successive postconviction petition is affirmed.

¶2 This case comes before this court for the sixth time. On this latest occasion, the defendant,

Ricky Allen Hotz, appeals from the circuit court’s denial of a motion for leave to file a successive

petition for postconviction relief. The defendant’s appointed attorney on appeal, the Office of the

State Appellate Defender (OSAD), has concluded that this appeal lacks merit, and on that basis it

has filed a motion to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987).

OSAD has provided the defendant with a copy of its Finley motion, and the defendant has filed

with this court a written response thereto. This court has considered OSAD’s motion, the 1 defendant’s response, the entire record on appeal, and this court’s decisions in the defendant’s

previous appeals in this case. For the reasons that follow, this court has concluded that this appeal

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

judgment of the circuit court is affirmed.

¶3 BACKGROUND

¶4 In July 2001, the defendant broke into M.M.’s home in Granite City, Illinois, and strangled

M.M. to death. In connection with that incident, the defendant was charged with six felony counts,

including one count of intentional murder and two counts of felony murder. One of the felony-

murder counts was predicated on home invasion. On September 21, 2001, the defendant and his

public defender appeared in the circuit court. Pursuant to a fully negotiated plea agreement, the

defendant pleaded guilty to felony murder predicated on home invasion, and the court sentenced

him to natural life imprisonment on that count, dismissing the other five counts.

¶5 Several days after the guilty-plea hearing, the defendant filed a pro se motion to withdraw

his plea of guilty; he did not provide any legal basis for the request. Subsequently, the public

defender, on behalf of the defendant, filed an amended motion to withdraw the guilty plea. In the

amended motion, the defendant claimed that he, at the time of the guilty plea, did not understand

the nature of the charge, the possible penalty, the consequences of pleading guilty, etc., and was

in no condition to make important decisions, due to a lack of education, a mental impairment

caused by cocaine use, and psychological stress. After a hearing that included testimony from the

defendant, the circuit court denied the defendant’s amended motion to withdraw the guilty plea.

¶6 The defendant appealed to this court. Through appointed appellate counsel, he argued that

the circuit court had abused its discretion in denying his amended motion to withdraw the guilty

plea. Also, the defendant argued that a natural-life sentence was not legally permitted for the

2 particular felony-murder count to which he had pleaded guilty, i.e., the count charging felony

murder predicated on home invasion. This court disagreed with all of the defendant’s arguments

and affirmed the circuit court’s denial order. People v. Hotz, No. 5-02-0241 (Apr. 29, 2003).

¶7 In the years following his unsuccessful direct appeal, the defendant has attempted several

collateral attacks on the judgment of conviction. Between April 2004 and June 2011, the defendant

filed, or sought leave to file, petitions for postconviction relief, and he filed petitions for relief

from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West

2018)). All of those attempts proved unsuccessful. A summary of those attempts can be found in

this court’s decision in People v. Hotz, 2015 IL App (5th) 140343-U, the most recent appeal in this

case, except for the instant appeal. In that particular decision, this court rejected the defendant’s

argument that the circuit court lacked jurisdiction to accept his guilty plea or to sentence him.

¶8 On November 9, 2015, the defendant filed the motion that is the subject of the instant

appeal, a pro se motion for leave to file a successive postconviction petition. The motion for leave

did not address the issues of cause or prejudice. Instead, the defendant asserted that his guilty plea

and his sentence, or at least a portion of his sentence, were void, and that a void judgment or a void

sentence could be attacked at any time under Illinois Supreme Court decisions such as People v.

Arna, 168 Ill. 2d 107 (1995), and People v. Thompson, 209 Ill. 2d 19 (2004). Accompanying the

pro se motion for leave to file a successive postconviction petition was a 37-page successive

petition. Much of the successive petition consisted of extensive quotations from Illinois case law

and from the transcript of the September 21, 2001, guilty-plea hearing. The defendant asserted

that the factual basis presented by the State at the guilty-plea hearing was insufficient to allow the

circuit court to accept his guilty plea to the particular felony-murder count to which he pleaded

guilty and was insufficient to permit a natural-life sentence for that particular count, and therefore

3 the sentence was void, and the sentence and the negotiated guilty plea needed to be vacated, and

the defendant needed to be allowed to plead anew.

¶9 On January 14, 2016, the circuit court entered a written order noting that the defendant had

failed to meet the cause-and-prejudice test for successive postconviction petitions. The court

denied the defendant leave to file his successive petition “as repetitive of previously filed

petitions.” The defendant perfected the instant appeal from the denial order.

¶ 10 ANALYSIS

¶ 11 This appeal is from an order denying a motion for leave to file a successive petition for

postconviction relief. Appellate review of such an order is de novo. People v. Wrice, 2012 IL

111860, ¶ 50. This court may affirm the order on any ground of record. People v. Johnson, 208

Ill. 2d 118, 129 (2003).

¶ 12 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) contemplates

the filing of only one petition for postconviction relief. People v. Flores, 153 Ill. 2d 264, 273

(1992). A defendant who wants to file a successive postconviction petition must first obtain leave

of court. People v. Tidwell, 236 Ill. 2d 150, 157 (2010). Leave of court will be granted if the

defendant meets the cause-and-prejudice test or if he shows a colorable claim of actual innocence

based on evidence that is newly-discovered, material, not merely cumulative, and of such a

conclusive character that it would likely change the result on retrial. People v. Edwards, 2012 IL

111711, ¶¶ 23-24, 32; People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). In addition, “[w]here

jurisdiction is lacking, any resulting judgment rendered is void and may be attacked either directly

or indirectly at any time.” People v. Davis, 156 Ill. 2d 149, 155 (1993).

¶ 13 In this case, the defendant asserted that he was entitled to leave to file a successive

postconviction petition because the judgment of conviction was void as a result of the State’s faulty

4 or inadequate factual basis for his guilty plea. This court found in one of the defendant’s previous

appeals that the circuit court did not lack jurisdiction to accept the defendant’s plea or to sentence

the defendant. See People v. Hotz, 2015 IL App (5th) 140343-U. Nothing in the record suggests

that the circuit court lacked personal jurisdiction over this criminal defendant or that it lacked

subject-matter jurisdiction over this case involving a murder committed in Granite City, Madison

County, Illinois, and the defendant certainly did not cite to any authority suggesting that a faulty

or inadequate factual basis somehow strips the court of its jurisdiction.

¶ 14 Furthermore, the defendant did not raise a claim that he was actually innocent of the crime

to which he pleaded guilty. He did not hint at, let alone describe, any newly-discovered evidence

in his case. Instead, he merely quoted from the transcript of the guilty-plea hearing and asserted

that the factual basis recited by the State did not establish the elements of the particular felony-

murder count to which he pleaded guilty.

¶ 15 Because the judgment of conviction in this case was not void, and because the defendant

did not raise in his successive petition a colorable claim of actual innocence based on newly-

discovered evidence, the defendant needed to satisfy the cause-and-prejudice test in order to be

entitled to leave to file his successive petition. That is, he needed to allege facts that made a

prima facie showing of (1) cause for his failure to raise his claim in his initial postconviction

proceeding and (2) prejudice resulting from that failure. See 725 ILCS 5/122-1(f) (West 2018);

People v. Bailey. 2017 IL 121450, ¶¶ 24-25. Relying solely on his voidness assertion, the

defendant did not even attempt to establish the requisite cause or the requisite prejudice.

Therefore, the circuit court had no choice but to deny the defendant’s motion for leave to file the

successive petition.

5 ¶ 16 CONCLUSION

¶ 17 The defendant failed to establish any basis that would entitle him to leave to file his

successive postconviction petition. The circuit court properly denied his motion for leave to file

it. Any argument to the contrary would lack merit. Accordingly, OSAD is granted leave to

withdraw as the defendant’s counsel on appeal, and the judgment of the circuit court is affirmed.

¶ 18 Motion granted; judgment affirmed.