People v. Leuthold

2025 IL App (4th) 250180-U

• Court: Appellate Court of Illinois
• Decided: December 19, 2025
• Docket: 4-25-0180
• Status: Unpublished

Opinion

NOTICE 2025 IL App (4th) 250180-U This Order was filed under FILED Supreme Court Rule 23 and is December 19, 2025 NO. 4-25-0180 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County NATHAN A. LEUTHOLD, ) No. 13CF208 Defendant-Appellant. ) ) Honorable ) Katherine S. Gorman, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Presiding Justice Harris and Justice Vancil concurred in the judgment.

ORDER

¶1 Held: (1) Because the judgment that defendant challenges in his petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2024)) was issued in the more recent postconviction proceeding instead of in the underlying criminal case, the two-year period of limitations in section 2-1401(c) (id. § 2-1401(c)) does not bar his petition.

(2) Because the attorney who represented defendant on appeal from the dismissal of his amended postconviction petition was in an inherent conflict of interest from having represented him in the postconviction proceedings below and could not have been expected to raise his own nonfulfillment of the amendment duty (see Ill. S. Ct. R. 651(c) (eff. July 1, 2017)), section 2-1401 entitles defendant to relief from the judgment in the postconviction case and a remand for compliance with Rule 651(c).

¶2 Pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401

(West 2024)), defendant, Nathan A. Leuthold, petitioned for relief from a judgment by the Peoria

County circuit court dismissing his amended petition for postconviction relief. In other words, he mounted a collateral challenge (the section 2-1401 petition) to the judgment in another collateral

proceeding (the postconviction proceeding). The court granted a motion by the State to dismiss

the section 2-1401 petition because of the expiration of the two-year statutory period of limitations

(see id. § 2-1401(c)). Defendant appeals.

¶3 This appeal raises purely legal questions, which we review de novo. See Warren

County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 47. First, we hold that

the two-year statutory period of limitations (see 735 ILCS 5/2-1401(c) (West 2024)) does not bar

the section 2-1401 petition, for, instead of challenging the conviction and sentence in the

underlying criminal case, the section 2-1401 petition challenges the judgment in the postconviction

proceeding, which was entered on June 7, 2022, less than two years before defendant filed the

section 2-1401 petition, on May 22, 2024. Second, we hold that because the attorney who

represented defendant on appeal from the dismissal of his amended petition for postconviction

relief was in an inherent conflict of interest from having represented defendant in the

postconviction proceedings below and could not have been expected to raise his own

noncompliance with the amendment duty in Illinois Supreme Court Rule 651(c) (eff. July 1, 2017),

section 2-1401 entitles defendant to relief from the judgment in the postconviction proceeding.

Therefore, we reverse the circuit court’s judgment in the section 2-1401 proceeding, vacate the

dismissal of the amended petition in the postconviction proceeding, and remand this case for

compliance with Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) in the postconviction

proceeding.

¶4 I. BACKGROUND

¶5 Defendant is serving a sentence of 80 years’ imprisonment for the first degree

murder of his wife, Denise Leuthold. After an unsuccessful direct appeal (see People v. Leuthold,

-2- 2016 IL App (3d) 140720-U), he petitioned for relief under the Post-Conviction Hearing Act (725

ILCS 5/122-1 et seq. (West 2016)).

¶6 In his pro se petition for postconviction relief, defendant complained that both his

trial counsel and the attorney who represented him on direct appeal had rendered ineffective

assistance. The circuit court appointed postconviction counsel, who amended the pro se petition.

The amended petition abandoned most of the claims that counsel had rendered ineffective

assistance on direct appeal and, instead, made trial counsel the focus of criticism, accusing him of

ineffective assistance.

¶7 The State moved to have the circuit court dismiss the amended petition. One of the

asserted grounds for dismissal was the procedural forfeiture of claims that the record would have

permitted defendant to raise on direct appeal.

¶8 The circuit court granted the State’s motion for dismissal. The court held that

defendant had failed to show prejudice from trial counsel’s allegedly substandard performance.

¶9 Defendant appealed the dismissal of his amended petition for postconviction relief,

and the appellate court affirmed the circuit court’s judgment. People v. Leuthold, 2023 IL App

(4th) 220563-U, ¶ 2. Part of the appellate court’s rationale for the affirmance was the procedural

forfeiture of four claims of ineffectiveness that the record on direct appeal would have enabled

defendant to raise in his direct appeal. Id. ¶ 71.

¶ 10 The forfeited claims were as follows. First, on the authority of Massiah v. United

States, 377 U.S. 201 (1964), trial counsel should have moved for the suppression of People’s

exhibit No. 93, a document that defendant had written at the request of a jailhouse informant,

David Smith, listing the items that defendant had removed from the house after murdering Denise

Leuthold. See Leuthold, 2023 IL App (4th) 220563-U, ¶¶ 69, 71. Second, trial counsel should have

-3- moved, on the ground of suggestiveness, for the suppression of Diane Parrish’s pretrial

identification of defendant. See id. ¶ 75. Third, trial counsel should have called Diane Parrish’s

spouse, Robert Parrish, to testify that the pedestrian was African-American. See id. ¶ 83. Fourth,

trial counsel should have objected to People’s exhibit No. 110, a list of the Internet searches that

had been performed on defendant’s computer, including searches of pornography. See id. ¶ 104.

¶ 11 After the appellate court affirmed the dismissal of his amended petition for

postconviction relief, defendant filed, in the circuit court, a petition for relief from the judgment

the circuit court had issued in the postconviction proceeding, which is to say, relief from the

dismissal of the amended postconviction petition. See 735 ILCS 5/2-1401 (West 2024). The theory

of the section 2-1401 petition was this: in amending the pro se petition, postconviction counsel

made the petition worse, and failed to fulfill his amendment duty pursuant to Rule 651(c), by

abandoning the pro se claims that appellate counsel had rendered ineffective assistance on direct

appeal. See People v. Addison, 2023 IL 127119, ¶ 24. The amended petition framed the four claims

in the preceding paragraph solely as criticisms of trial counsel, without additionally criticizing

appellate counsel for failing to raise those claims on direct appeal. Removing the criticism of

appellate counsel made those claims vulnerable to procedural forfeiture (or “waiver,” as forfeiture

is sometimes called (People v. Hughes, 2015 IL 117242, ¶ 37)). See People v. Christmas, 2025 IL

App (1st) 241355-U, ¶ 24 (“When a pro se petition asserts claims that could have been raised on

direct appeal, waiver of the claims can be overcome by characterizing such matters as ineffective

assistance of appellate counsel claims,” and “ ‘failure to allege ineffective assistance of appellate

counsel when necessary to overcome [waiver] [i]s a violation of Rule 651(c)’ and constitutes

unreasonable representation.”) (quoting Addison, 2023 IL 127119, ¶ 27).

¶ 12 The State moved for a dismissal of the section 2-1401 petition on the ground that it

-4- was filed beyond the two-year period in section 2-1401(c) (735 ILCS 5/2-1401(c) (West 2024)).

The circuit court granted the motion. Defendant moved for reconsideration of the dismissal,

pointing out that the judgment he challenged in his section 2-1401 petition was not the judgment

in the underlying criminal case but, rather, the more recent judgment in the postconviction

proceeding. The court denied the motion for reconsideration.

¶ 13 This appeal followed.

¶ 14 II. ANALYSIS

¶ 15 Section 2-1401(a) of the Code of Civil Procedure provides as follows:

“(a) Relief from final orders and judgments, after 30 days from the entry

thereof, may be had upon petition as provided in this Section. Writs of error

coram nobis and coram vobis, bills of review, and bills in the nature of bills of

review are abolished. All relief heretofore obtainable and the grounds for such relief

heretofore available, whether by any of the foregoing remedies or otherwise, shall

be available in every case, by proceedings hereunder, regardless of the nature of the

order or judgment from which relief is sought or of the proceedings in which it was

entered. Except as provided in the Illinois Parentage Act of 2015 [(750 ILCS 46/101

et seq. (West 2024))], there shall be no distinction between actions and other

proceedings, statutory or otherwise, as to availability of relief, grounds for relief,

or the relief obtainable.” 735 ILCS 5/2-1401(a) (West 2024).

¶ 16 Thus, section 2-1401(a) begins with this sentence: “Relief from final orders and

judgments, after 30 days after the entry thereof, may be had upon petition as provided in this

Section.” Id. Defendant explains, quoting People v. Shinaul, 2017 IL 120162, ¶ 10, that a judgment

or order of the circuit court “ ‘is considered final and appealable if it determines the litigation on

-5- the merits such that the only thing remaining is to proceed with execution of judgment.’ ” The

circuit court’s dismissal of his amended postconviction petition, he continues, meets that

description of a final judgment: it fully determined the postconviction litigation on the merits.

Thus, he concludes, the dismissal can be challenged by a section 2-1401 petition. It makes no

difference, he adds, that the judgment he challenges, via section 2-1401, was a judgment in another

collateral proceeding (a postconviction proceeding), for section 2-1401(a) provides that “[a]ll

relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of

the foregoing remedies or otherwise, shall be available in every case”—including a collateral case.

735 ILCS 5/2-1401(a) (West 2024). Also, the statute provides that (with a lone exception that is

inapplicable) “there shall be no distinction between actions and other proceedings, statutory or

otherwise, as to availability of relief, grounds for relief, or the relief obtainable.” Id. Thus, it does

not matter whether the judgment that the section 2-1401 petition challenges was entered in an

original proceeding or a collateral proceeding: “there shall be no distinction between actions and

other proceedings.” Id. Regardless of the procedural costume of the underlying litigation, relief

shall be available.

¶ 17 Although the “relief” to which section 2-1401(a) refers is the “relief heretofore

available”—that is to say, available in response to the abolished common-law “[w]rits of error

coram nobis and coram vobis, bills of review, and bills in the nature of bills of review” (id.)—“the

use of” a section 2-1401 petition “has not been restricted to the narrow confines of its common-

law antecedent.” Ellman v. De Ruiter, 412 Ill. 285, 291 (1952). “Rather, courts have encouraged

the development of the statutory equivalent” and have “permitted its use in new situations,” “to

prevent injustice.” Id. Defendant complains it was unjust that, in his postconviction case, both at

the circuit court and on appeal, he was denied his statutory right to receive a reasonable level of

-6- assistance from counsel. See People v. Custer, 2019 IL 123339, ¶ 30 (“The required quantum of

assistance [in a postconviction proceeding] has been judicially deemed to be a reasonable level.”

(Internal quotation marks omitted.)); People v. Lyles, 217 Ill. 2d 210, 218 (2005) (referring to “the

reasonable level of assistance [citation] that our rules extend to a postconviction petitioner on

appeal” (internal quotation marks omitted)).

¶ 18 Defendant contends that, because of his attorney’s drafting error in the circuit court

and because of a conflict of interest that arose on appeal when the same attorney who represented

him in the circuit court represented him in the appellate court, he landed in a predicament like that

of the defendant in People v. Lawton, 212 Ill. 2d 285 (2004). In Lawton, the State brought an action

under the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 et seq. (West 2002)) to have

the defendant declared a sexually dangerous person and to have him committed to the Illinois

Department of Corrections (Department). Lawton, 212 Ill. 2d at 287. Counsel represented the

defendant (id. at 288), and after hearing evidence, the court granted the State’s petition (id. at 292).

The same attorney who represented the defendant in the circuit court then represented him on

direct appeal. Id. The only argument the attorney made on direct appeal was that the State had

failed to prove the defendant suffered from a mental disorder. Id. The appellate court rejected that

argument and affirmed the circuit court’s judgment. Id. Then, pursuant to section 2-1401, the

defendant petitioned the circuit court for relief from its judgment declaring him to be a sexually

dangerous person and committing him to the Department. Id. He was represented by a new lawyer,

who claimed that, in the proceedings under the Act, previous counsel rendered ineffective

assistance. Id. at 293. The ineffectiveness, the new lawyer contended, lay in counsel’s failure to

challenge the state’s attorney’s assertions, accepted by the circuit court, that “ ‘proof beyond a

reasonable doubt, or any proof at trial, was not required with respect to the “demonstrated

-7- propensities” element of the State’s cause of action.’ ” Id. Agreeing that previous counsel was

ineffective for that reason, the circuit court granted the section 2-1401 petition. Id. at 294. For two

reasons, however, the appellate court reversed the circuit court’s judgment in the section 2-1401

proceeding: (1) “proceedings under section 2-1401 [were] not an appropriate forum for a defendant

to raise claims regarding competency of counsel” and (2) the claim of ineffective assistance lacked

merit, anyway. Id.

¶ 19 On appeal from the appellate court, the first question the supreme court considered

in Lawton was whether the defendant could use section 2-1401 to challenge the competency of the

attorney who represented him in the proceedings under the Act. See id. at 294-95. On the following

reasoning, the supreme court concluded that section 2-1401 could be used for that purpose. See id.

at 295. Because defendants subject to the Act, like defendants in a criminal case, could be deprived

of their liberty, defendants subject to the Act were constitutionally (and statutorily (see 725 ILCS

205/5 (West 2002)) entitled to the same protections as criminal defendants, including the right to

be represented by counsel. See Lawton, 212 Ill. 2d at 295. Implicit in this right to counsel was the

right to receive effective assistance from the counsel. Id. The right to effective assistance would

have lacked meaning unless a defendant had some means of asserting that right. Id. It was true that

individuals found to be sexually dangerous had the right to a direct appeal, in which they could

complain of having received ineffective assistance in the proceedings below. Id. The trouble in

Lawton, though, was that the same attorney who represented the defendant in the circuit court also

represented him on direct appeal. Id. at 296. Because attorneys could not be expected to argue their

own incompetence, the direct appeal was, for the defendant in Lawton, not an opportunity to raise

a claim of ineffective assistance. Id. Such an opportunity had to be provided: “Some other remedy

must therefore be found.” Id. at 297. The remedy was not to be found in the Post-Conviction

-8- Hearing Act: because that statute applied only to “persons imprisoned pursuant to a criminal

conviction,” it was inapplicable to the defendant in Lawton. Id. The applicable statute, then, was

section 2-1401, which could be used not only to “correct errors of fact” but also “to challenge

judgments claimed to be defective for legal reasons.” Id. The supreme court held, “Relief should

be granted under section 2-1401 when necessary to achieve justice. To accomplish that goal, the

statute is to be construed liberally.” Id. at 298.

¶ 20 Notwithstanding this policy of liberally construing section 2-1401, the supreme

court disavowed any intention of making attorney negligence a basis for relief in all civil cases:

“As a general rule, we must be concerned about the need for finality of

judgments. We must also be guarded about when and under what circumstances a

party should be permitted to challenge an otherwise valid judgment based on his

attorney’s negligence. If this were a conventional civil case in which a litigant

sought to collaterally attack a judgment on the grounds that his lawyer was

negligent, there would be no question that relief would not lie under section 2-1401.

But this is not such a case. It is a proceeding under the Sexually Dangerous Persons

Act in which the defendant has a constitutional right to effective assistance of

counsel.” Id. at 299-300.

Thus, in the supreme court’s analysis, what set the Lawton defendant’s case apart from

conventional civil cases, allowing him to raise ineffective assistance as a ground for relief under

section 2-1401, was his constitutional right to receive effective assistance from counsel. Under the

supremacy clause of the United States Constitution (U.S. Const., art. VI. cl. 2), a state remedy had

to be found for the vindication of that constitutional right; a state could not “shut its doors entirely

to federal constitutional claims.” Lawton, 212 Ill. 2d at 300.

-9- ¶ 21 Defendant argues, by analogy, that a remedy should be found for him. He maintains

that his right to receive reasonable assistance from postconviction counsel in the drafting of the

amended petition (see Ill. S. Ct. R. 651(c) (eff. July 1, 2017)) entitles him to relief under section

2-1401 because (1) he was denied such reasonable assistance in the circuit court and (2) the

attorney representing him on appeal from the dismissal of the amended postconviction petition

was the same attorney who represented him in the postconviction proceedings below and that

attorney, on appeal, could not have been expected to argue his own faulty draftsmanship.

¶ 22 The State counters that whether postconviction counsel fulfilled his obligations

under Rule 651(c) is a question of law (see People v. Bass, 2018 IL App (1st) 152650, ¶ 13) and,

under People v. Pinkonsly, 207 Ill. 2d 555, 565 (2003), defendant’s petition pursuant to section

2-1401 must raise “ ‘errors of fact, not law.’ ”

¶ 23 In Pinkonsly, the defendant was convicted of three drug offenses, for which the

circuit court sentenced him to imprisonment. Id. at 558. He took a direct appeal, and the appellate

court affirmed the circuit court’s judgment. Id. Afterward, he filed in the circuit court a pro se

petition pursuant to section 2-1401, in which he claimed that trial counsel had rendered ineffective

assistance. Id. at 558-59. The circuit court appointed an attorney to represent the defendant in the

section 2-1401 proceedings, the attorney amended the petition, and the court dismissed the

amended petition. Id. at 559. The defendant appealed the dismissal of his amended petition. Id.

The appellate court appointed a different attorney to represent him, and this new attorney

“contended that all of [the defendant’s] prior attorneys, including his court-appointed attorney on

his section 2-1401 petition, were constitutionally ineffective.” Id. The appellate court declined to

consider these claims that trial counsel and appellate counsel had rendered ineffective assistance,

holding that “such claims are not cognizable in a section 2-1401 petition.” Id.

- 10 - ¶ 24 The supreme court in Pinkonsly agreed with the appellate court in that respect. The

supreme court noted, “We have long held that section 2-1401 proceedings are not an appropriate

forum for ineffective-assistance claims because such claims do not challenge the factual basis for

the judgment.” Id. at 567. A petitioner for relief under section 2-1401 had to allege “errors of fact

occurring in the prosecution of a cause, unknown to the petitioner and court at the time judgment

was entered, which, if then known, would have prevented its rendition.” (Internal quotation marks

omitted.) Id. at 566. Ineffective assistance was an error of law, not an error of fact, and section

2-1401 was concerned only with errors of fact. See id. at 565. An action under the Post-Conviction

Hearing Act, not an action under section 2-1401, was the correct procedural vehicle for a claim of

ineffective assistance and other constitutional violations. See id. at 566.

¶ 25 In Lawton, though, the supreme court made an exception to this fact-law dichotomy

if appellate counsel’s “inherent conflict of interest” from having represented the defendant in the

proceedings below frustrated the procedural vehicle the legislature had provided for raising an

appellate claim of ineffective assistance. Lawton, 212 Ill. 2d at 296. Granted, in Lawton, the

defendant’s right to effective assistance came from the United States Constitution (see id. at 295),

whereas, here, defendant’s right to reasonable assistance came from section 122-4 of the

Post-Conviction Hearing Act (725 ILCS 5/122-4 (West 2024)) and Rule 651(c) (see People v.

Owens, 139 Ill. 2d 351, 359 (1990)). Nevertheless, even though the sources of the right are

different, what matters is that, in his appeal from the dismissal of his amended petition for

postconviction relief, defendant had the legal right to receive a reasonable level of assistance from

counsel (see People v. Lyles, 217 Ill. 2d 210, 218 (2005))—never mind the source of the legal

right—and he was denied that legal right because the attorney who represented him on appeal

could not have been expected to argue his own noncompliance with the amendment duty in Rule

- 11 - 651(c). See Lawton, 212 Ill. 2d at 296.

¶ 26 “Relief should be granted under section 2-1401 when necessary to achieve justice.”

Id. at 298. “Doing justice under the law is this court’s highest obligation” (id. at 299), and to fulfill

that obligation, we should construe this “versatile” statute “liberally” (id. at 298-99). It would be

unjust if, because of the inherent conflict of interest of his attorney, defendant were denied the

opportunity to insist on an amendment that would have easily swept away a procedural obstacle to

four of his postconviction claims. See Christmas, 2025 IL App (1st) 241355-U, ¶ 24. If he had

been represented by a different attorney, he could have insisted on a remand for the making of this

amendment regardless of whether the amendment would have had great promise. See People v.

Suarez, 224 Ill. 2d 37, 51-52 (2007).

¶ 27 Defendant’s right to receive reasonable assistance from counsel on appeal from the

dismissal of his amended petition for postconviction relief (see Lyles, 217 Ill. 2d at 218) would

have little meaning if he lacked the means of enforcing that right. Section 2-1401 is the fail-safe,

and we agree with defendant’s explication and application of that statute.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we reverse the circuit court’s judgment in the section 2-1401

proceeding, vacate the dismissal of the amended petition in the postconviction proceeding, and

remand this case for compliance with Rule 651(c) in the postconviction proceeding.

¶ 30 Reversed in part and vacated in part; cause remanded with directions.

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