NOTICE 2021 IL App (4th) 200247-U FILED This Order was filed under November 16, 2021 Supreme Court Rule 23 and NO. 4-20-0247 Carla Bender is not precedent except in the 4th District Appellate limited circumstances IN THE APPELLATE COURT Court, IL allowed 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. ) Coles County ANDREW R. MORECRAFT, ) No. 12CF148 Defendant-Appellant. ) ) Honorable ) James R. Glenn, ) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Harris and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to withdraw as counsel and affirmed the circuit court’s judgment as no issue of arguable merit could be raised on appeal.
¶2 Defendant, Andrew R. Morecraft, appeals from the circuit court’s denial of his
motion for leave to file a successive postconviction petition. On appeal, the Office of the State
Appellate Defender (OSAD) moves to withdraw as counsel on the ground no issue of arguable
merit can be raised. Defendant did not file a response to OSAD’s motion. We grant OSAD’s
motion and affirm the circuit court’s judgment.
¶3 I. BACKGROUND
¶4 In May 2012, the State charged defendant by information with intentional first
degree murder (720 ILCS 5/9-1(a)(1) (West 2010)) (count I) and knowing first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) (count II). Count II alleged defendant, “without lawful
justification, struck [the victim] about the head and body with his fists or another blunt object,
knowing said act created a strong probability of death or great bodily harm to [the victim],
thereby causing the death of [the victim].”
¶5 In January 2014, defendant entered into a fully negotiated guilty plea to knowing
first degree murder (count II). He received a 25-year prison sentence to be served consecutively
to a sentence in an unrelated case. In exchange, the State dismissed count I and a Class 2 felony
for aggravated driving under the influence. The circuit court accepted defendant’s guilty plea and
sentenced him to 25 years’ imprisonment. The circuit court then admonished defendant of his
appellate rights and explained defendant must file a motion to withdraw his guilty plea to
preserve his right to appeal. Defendant did not file a postplea motion.
¶6 In April 2014, defendant filed a motion for leave to file a late notice of appeal,
which this court granted. Defendant later filed a motion to dismiss his direct appeal because he
failed to file a timely postplea motion. We granted his motion.
¶7 In September 2015, defendant filed pro se a postconviction petition alleging plea
counsel provided ineffective assistance by erroneously advising defendant he had no defense to
first degree murder. The circuit court summarily dismissed defendant’s petition as frivolous and
patently without merit. Defendant filed a motion to reconsider, which the circuit court denied.
On appeal, this court affirmed the summary dismissal of defendant’s petition. See People v.
Morecraft, 2018 IL App (4th) 150990-U.
¶8 On March 27, 2020, defendant filed pro se a motion for leave to file a successive
postconviction petition. Defendant alleged as cause the Illinois Supreme Court’s March 2016
amendments to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016). Defendant argued the
-2- amendments to the rule were retroactive and defense counsel was required to strictly comply
with the certification requirements. Because defense counsel failed to file a certificate pursuant
to Rule 604(d), defendant’s right to due process was violated. Defendant attached to his motion
his proposed successive petition, further alleging counsel failed to comply with Rule 604(d).
¶9 On March 30, 2020, the circuit court denied defendant’s motion for leave to file a
successive postconviction petition. In its written order, the circuit court noted, “[S]ince
Defendant did not file a motion to withdraw his plea of guilty ***, his attorney was not required
by Supreme Court Rule 604(d) to file a certificate.” The circuit court found defendant failed to
establish cause and prejudice.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 On appeal, OSAD asserts no colorable argument can be made suggesting the
circuit court’s denial of defendant’s motion for leave to file a successive postconviction petition
was in error. We agree.
¶ 13 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018))
“provides a mechanism for criminal defendants to challenge their convictions or sentences based
on a substantial violation of their rights under the federal or state constitutions.” People v.
Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010). The Act contemplates the filing of
only a single postconviction petition, and any claim not raised in the original postconviction
petition is deemed waived. People v. Holman, 2017 IL 120655, ¶ 25, 91 N.E.3d 849 (citing 725
ILCS 5/122-3 (West 2010)).
¶ 14 The statutory bar against a successive postconviction petition will be relaxed only
where a defendant sets forth a colorable claim of actual innocence or shows cause and prejudice
-3- for the failure to raise an alleged constitutional claim in an earlier petition. Id. ¶ 26. Under the
cause-and-prejudice test, a defendant demonstrates 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.” 725 ILCS 5/122-1(f)(1) (West 2018). A defendant demonstrates prejudice by
showing 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)(2)
(West 2018). For a defendant to obtain leave to file a successive postconviction petition, both
prongs of the cause-and-prejudice test must be satisfied. People v. Guerrero, 2012 IL 112020,
¶ 15, 963 N.E.2d 909. “[L]eave of court to file a successive postconviction petition should be
denied 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.”
People v. Smith, 2014 IL 115946, ¶ 35, 21 N.E.3d 1172.
¶ 15 OSAD contends defendant’s proposed successive postconviction petition has no
arguable legal merit. We agree.
¶ 16 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) provides, in pertinent part:
“No appeal from a judgment entered upon a plea of guilty shall be taken unless
the defendant *** files in the trial court a motion to reconsider the sentence ***
or *** a motion to withdraw the plea of guilty and vacate the judgment.
***
The motion shall be in writing and shall state the grounds therefor. ***
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NOTICE 2021 IL App (4th) 200247-U FILED This Order was filed under November 16, 2021 Supreme Court Rule 23 and NO. 4-20-0247 Carla Bender is not precedent except in the 4th District Appellate limited circumstances IN THE APPELLATE COURT Court, IL allowed 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. ) Coles County ANDREW R. MORECRAFT, ) No. 12CF148 Defendant-Appellant. ) ) Honorable ) James R. Glenn, ) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Harris and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to withdraw as counsel and affirmed the circuit court’s judgment as no issue of arguable merit could be raised on appeal.
¶2 Defendant, Andrew R. Morecraft, appeals from the circuit court’s denial of his
motion for leave to file a successive postconviction petition. On appeal, the Office of the State
Appellate Defender (OSAD) moves to withdraw as counsel on the ground no issue of arguable
merit can be raised. Defendant did not file a response to OSAD’s motion. We grant OSAD’s
motion and affirm the circuit court’s judgment.
¶3 I. BACKGROUND
¶4 In May 2012, the State charged defendant by information with intentional first
degree murder (720 ILCS 5/9-1(a)(1) (West 2010)) (count I) and knowing first degree murder (720 ILCS 5/9-1(a)(2) (West 2010)) (count II). Count II alleged defendant, “without lawful
justification, struck [the victim] about the head and body with his fists or another blunt object,
knowing said act created a strong probability of death or great bodily harm to [the victim],
thereby causing the death of [the victim].”
¶5 In January 2014, defendant entered into a fully negotiated guilty plea to knowing
first degree murder (count II). He received a 25-year prison sentence to be served consecutively
to a sentence in an unrelated case. In exchange, the State dismissed count I and a Class 2 felony
for aggravated driving under the influence. The circuit court accepted defendant’s guilty plea and
sentenced him to 25 years’ imprisonment. The circuit court then admonished defendant of his
appellate rights and explained defendant must file a motion to withdraw his guilty plea to
preserve his right to appeal. Defendant did not file a postplea motion.
¶6 In April 2014, defendant filed a motion for leave to file a late notice of appeal,
which this court granted. Defendant later filed a motion to dismiss his direct appeal because he
failed to file a timely postplea motion. We granted his motion.
¶7 In September 2015, defendant filed pro se a postconviction petition alleging plea
counsel provided ineffective assistance by erroneously advising defendant he had no defense to
first degree murder. The circuit court summarily dismissed defendant’s petition as frivolous and
patently without merit. Defendant filed a motion to reconsider, which the circuit court denied.
On appeal, this court affirmed the summary dismissal of defendant’s petition. See People v.
Morecraft, 2018 IL App (4th) 150990-U.
¶8 On March 27, 2020, defendant filed pro se a motion for leave to file a successive
postconviction petition. Defendant alleged as cause the Illinois Supreme Court’s March 2016
amendments to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016). Defendant argued the
-2- amendments to the rule were retroactive and defense counsel was required to strictly comply
with the certification requirements. Because defense counsel failed to file a certificate pursuant
to Rule 604(d), defendant’s right to due process was violated. Defendant attached to his motion
his proposed successive petition, further alleging counsel failed to comply with Rule 604(d).
¶9 On March 30, 2020, the circuit court denied defendant’s motion for leave to file a
successive postconviction petition. In its written order, the circuit court noted, “[S]ince
Defendant did not file a motion to withdraw his plea of guilty ***, his attorney was not required
by Supreme Court Rule 604(d) to file a certificate.” The circuit court found defendant failed to
establish cause and prejudice.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 On appeal, OSAD asserts no colorable argument can be made suggesting the
circuit court’s denial of defendant’s motion for leave to file a successive postconviction petition
was in error. We agree.
¶ 13 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018))
“provides a mechanism for criminal defendants to challenge their convictions or sentences based
on a substantial violation of their rights under the federal or state constitutions.” People v.
Morris, 236 Ill. 2d 345, 354, 925 N.E.2d 1069, 1075 (2010). The Act contemplates the filing of
only a single postconviction petition, and any claim not raised in the original postconviction
petition is deemed waived. People v. Holman, 2017 IL 120655, ¶ 25, 91 N.E.3d 849 (citing 725
ILCS 5/122-3 (West 2010)).
¶ 14 The statutory bar against a successive postconviction petition will be relaxed only
where a defendant sets forth a colorable claim of actual innocence or shows cause and prejudice
-3- for the failure to raise an alleged constitutional claim in an earlier petition. Id. ¶ 26. Under the
cause-and-prejudice test, a defendant demonstrates 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.” 725 ILCS 5/122-1(f)(1) (West 2018). A defendant demonstrates prejudice by
showing 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)(2)
(West 2018). For a defendant to obtain leave to file a successive postconviction petition, both
prongs of the cause-and-prejudice test must be satisfied. People v. Guerrero, 2012 IL 112020,
¶ 15, 963 N.E.2d 909. “[L]eave of court to file a successive postconviction petition should be
denied 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.”
People v. Smith, 2014 IL 115946, ¶ 35, 21 N.E.3d 1172.
¶ 15 OSAD contends defendant’s proposed successive postconviction petition has no
arguable legal merit. We agree.
¶ 16 Illinois Supreme Court Rule 604(d) (eff. July 1, 2017) provides, in pertinent part:
“No appeal from a judgment entered upon a plea of guilty shall be taken unless
the defendant *** files in the trial court a motion to reconsider the sentence ***
or *** a motion to withdraw the plea of guilty and vacate the judgment.
***
The motion shall be in writing and shall state the grounds therefor. ***
The motion shall be presented promptly to the trial judge by whom the defendant
was sentenced ***. The trial court shall then determine whether the defendant is
-4- represented by counsel, and if the defendant is indigent and desires counsel, the
trial court shall appoint counsel.
*** The defendant’s attorney shall file with the trial court a certificate
stating that the attorney has consulted with the defendant either by phone, mail,
electronic means or in person to ascertain defendant’s contentions of error in the
sentence and the entry of the plea of guilty, has examined the trial court file and
both the report of proceedings of the plea of guilty and the report of proceedings
in the sentencing hearing, and has made any amendments to the motion necessary
for the adequate presentation of any defects in those proceedings.”
Defendant contended in his motion for leave to file a successive postconviction petition and
proposed petition defense counsel erred by failing to file a certificate pursuant to Rule 604(d).
However, “the purpose of the Rule 604(d) certificate requirement is to ensure counsel has
reviewed the defendant’s claim and considered all relevant bases for the motion to withdraw the
guilty plea or to reconsider sentence.” (Internal quotation marks omitted.) People v. Montag,
2014 IL App (4th) 120993, ¶ 22, 5 N.E.3d 246. Defendant did not file, either pro se or with the
assistance of counsel, any postplea motion. In the absence of such a motion, there is nothing for
counsel to certify.
¶ 17 OSAD also notes there is no colorable argument the State improperly participated
at the leave-to-file stage of the postconviction proceedings. In People v. Bailey, 2017 IL 121450,
¶ 24, 102 N.E.3d 114, the Illinois Supreme Court held “the State should not be permitted to
participate at the cause and prejudice stage of successive postconviction proceedings.” The
Illinois Supreme Court explained, although the Act “does not expressly prohibit the State’s input,
we find that the Act contemplates an independent determination by the circuit court. The motion
-5- for leave to file is directed to the court, and it is the court that must decide the legal question of
whether a defendant has satisfied the section 122-1(f) requirement of showing cause and
prejudice.” Id. In this case, the State did not participate in the proceedings. Therefore, no
meritorious argument can be made the State participated improperly.
¶ 18 III. CONCLUSION
¶ 19 For the reasons stated, we grant OSAD’s motion for leave to withdraw as
appellate counsel and affirm the trial court’s judgment.
¶ 20 Affirmed.
-6-