2023 IL App (1st) 220869-U Order filed: March 31, 2023
FIRST DISTRICT FOURTH DIVISION
No. 1-22-0869
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 13 CR 6857 ) MICHAEL REED, ) Honorable ) Peggy Chiampas, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE ROCHFORD delivered the judgment of the court. Justices Hoffman and Martin concurred in the judgment.
ORDER
¶1 Held: We affirmed the denial of defendant’s motion for leave to file a successive postconviction petition because he failed to satisfy the prejudice component of the cause-and-prejudice test.
¶2 Defendant, Michael Reed, appeals the denial of his motion for leave to file a successive
postconviction petition. We affirm as he failed to satisfy the prejudice component of the cause-
and-prejudice test.
¶3 The State charged defendant with the attempted murder and aggravated battery of the
victim, Michael Turner. At the bench trial, Turner testified that on October 10, 2012, he verbally No. 1-22-0869
argued with defendant because he was upset at the amount of time defendant was spending with
his girlfriend and children. Defendant showed a chrome gun and Turner retreated back to his own
house, where he retrieved a .9 millimeter gun, moved the children to safety, and argued with his
girlfriend. Turner subsequently went to his garage, placed his gun inside an unlocked cabinet, and
entered his automobile. Turner noticed defendant standing on the passenger side of the vehicle,
holding the chrome gun. Defendant fired at least five shots at him, with one of them hitting him in
the face. Turner ran away, the police were called, and he was transported to the hospital. Turner
subsequently picked defendant out of a lineup and identified him as the shooter.
¶4 Officer Kevin Norris, an evidence technician, testified that he arrived at the scene of the
shooting and found three .45 caliber cartridge casings and a .9 millimeter gun. Forensic testing
established that the three fired cartridge casings were all fired from the same weapon and were not
fired from the .9 millimeter gun.
¶5 Defendant testified that he had a .45 caliber gun in his pocket when verbally arguing with
Turner, but that he did not take it out. About an hour after the argument, defendant went inside
Turner’s garage to talk with him. Turner pulled a gun and aimed it at defendant. Fearing for his
life, defendant pulled out his .45 gun and shot at least three times at Turner.
¶6 Following all the evidence, the trial court convicted defendant of attempted murder and
aggravated battery and sentenced him to 35 years’ imprisonment. Defendant’s conviction was
affirmed on direct appeal. See People v. Reed, 2018 IL App (1st) 152883-U.
¶7 Defendant filed a postconviction petition on February 14, 2019, alleging a number of ways
in which his trial counsel provided ineffective assistance, including by twice asking the State for
a “plea deal” without his consent. The postconviction court dismissed the petition at the first stage
as frivolous and patently without merit. -2- No. 1-22-0869
¶8 On October 14, 2021, defendant filed a motion for leave to file a successive postconviction
petition based on his trial counsel’s alleged ineffectiveness in failing to tell him that prior to trial,
the State had offered him 20 years in prison in exchange for his guilty plea. Defendant attached
his own affidavit attesting that he would have accepted the State’s 20-year plea offer had counsel
made him aware of it prior to trial. Defendant also attached the affidavit of his brother, Deangelo
James, attesting that after the trial, counsel told James that he regretted not relaying the State’s 20-
year plea offer to defendant. Counsel admitted that he had forgotten to tell defendant about the
offer because “he had so much going on with complaints from other clients and being before the
Illinois Attorney Registration and Disciplinary Commission.” James attested that he asked counsel
whether he would be willing to sign his own affidavit admitting to his failure to tell defendant
about the plea offer, but counsel refused and further stated that if compelled to testify about the
plea offer, he would invoke his right against self-incrimination.
¶9 On October 25, 2021, defendant’s motion for leave to file a successive postconviction
petition came before the court. The postconviction court stated for the record, “Petitioner granted
leave to file successive petition for PC relief, so it will be order of court 11/19/21.” No parties
were present. On the criminal disposition sheet, the court wrote that it had granted defendant leave
to file his successive petition for postconviction relief.
¶ 10 On February 25, 2022, with the State present but no one appearing for defendant, the case
was called. The State informed the court, “This is the one that you asked me to get the court file,
our court file, to see if there was an offer that was entered.” The court responded,
“All right. I was prepared to enter an order on [defendant], but in light of the fact I have
some information that was presented by the State on this that I think I need to address, so
I’m going to give it a date. Order of court 04/29/22 for motion on the defendant’s motion.” -3- No. 1-22-0869
¶ 11 On March 10, 2022, with the State present but no one appearing for the defense, the court
entered an order finding that defendant had failed to satisfy the prejudice component of the cause
and prejudice test for filing a successive postconviction petition. Accordingly, the court denied
defendant leave to file his successive petition. Defendant appeals.
¶ 12 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) provides
a three-stage procedure for criminal defendants to raise constitutional issues about their trial or
sentencing that could not have been raised on direct appeal. People v. Morales, 2019 IL App (1st)
160225, ¶ 17. At the first stage, the postconviction court evaluates the petition and determines
whether it is frivolous or patently without merit. Id. If the court determines that the petition is not
frivolous or patently without merit, it is docketed for second-stage proceedings, during which
counsel can be retained or appointed, and defendant must show that his petition makes a substantial
showing of a constitutional violation. Id. The State can participate for the first time at the second
stage and either answer the petition or move to dismiss. Id. If the petition makes a substantial
showing of a constitutional violation, it advances to the third-stage evidentiary hearing where the
postconviction court receives evidence and determines whether defendant is entitled to relief. Id.
¶ 13 Section 122-1(f) of the Act states:
“(f) Only one petition may be filed by a petitioner under this Article without leave of the
court. Leave of court may be granted only if a petitioner demonstrates cause for his or her
failure to bring the claim in his or her initial post-conviction proceedings and prejudice
results from that failure. For purposes of this subsection (f): (1) a prisoner shows 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; and (2) a prisoner shows prejudice by
demonstrating that the claim not raised during his or her initial post-conviction proceedings -4- No. 1-22-0869
so infected the trial that the resulting conviction or sentence violated due process.” 725
ILCS 5/122-1(f) (West 2020).
¶ 14 The Act contemplates the filing of a single petition: “Any claim of substantial denial of
constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122-
3 (West 2020).Thus, section 122-1(f) provides an exception to this rule, permitting a successive
petition, but only if defendant first obtains leave of court by making a prima facie showing of
cause and prejudice for not having raised the errors in his initial postconviction petition. Id.; People
v. Bailey, 2017 IL 121450, ¶ 15, ¶ 24.
¶ 15 As with an initial postconviction filing, in considering a motion for leave to file a
successive petition, all well-pleaded facts and supporting affidavits are taken as true. People v.
Edwards, 2012 IL App (1st) 091651, ¶ 25. Leave to file a successive petition should be denied
where it is clear, from a review of defendant’s petition and supporting documentation, that his
claims fail as a matter of law or where the successive petition and supporting documentation are
insufficient to justify further proceedings. People v. Smith, 2014 IL 115946, ¶ 35. We review de
novo the postconviction court’s denial of leave to file a successive petition. Edwards, 2012 IL App
(1st) 091651, ¶ 25.
¶ 16 Our supreme court has held that “the cause-and-prejudice test for a successive petition
involves a higher standard than the first-stage frivolous or patently without merit standard that is
set forth in section 122-2.1(a)(2) of the Act.” Smith, 2014 IL 2014 115946, ¶ 35. “Since a filed
successive petition has already satisfied a higher standard, the first stage is rendered unnecessary
and the successive petition is docketed directly for second-stage proceedings.” People v. Morrow,
2019 IL App (1st) 161208, ¶ 48.
-5- No. 1-22-0869
¶ 17 In the instant case, defendant argues that on October 25, 2021, the postconviction court
entered an order granting him leave to file his successive petition, and therefore that the petition
automatically advanced to the second stage such that he should have been appointed counsel.
Defendant contends that the court’s failure to appoint him counsel at the second stage of the
proceedings necessitates a remand for new second-stage proceedings with appointed counsel.
¶ 18 Defendant’s contention is without merit, because the court made no express determination
on October 25, 2021, as to whether each individual claim in the successive petition met the cause-
and-prejudice test. Without such an express determination, the successive petition was not deemed
filed under the Act on October 25, 2021, and did not advance to the second stage. People v. Ford,
2022 IL App (1st) 211538, is informative. In Ford, the defendant filed a motion for leave to file a
successive postconviction petition. Id. ¶ 3. The postconviction court “allowed” the petition,
appointed counsel to represent the defendant, and advanced the petition to the second stage without
ever expressly finding that the defendant met the cause-and-prejudice test. Id. The appellate court
held that “[t]his procedure of allowing the petition and advancing it to the second stage without an
express ruling on cause and prejudice was improper, and the postconviction court was without
authority to consider the merits of the petition, which technically still has not been ‘filed,’ without
such a determination.” Id. ¶ 5. See also People v. Thames, 2021 IL App (1st) 180071,¶¶ 84-85, ¶
91 (holding that without an express cause-and-prejudice ruling, the successive petition is not
deemed filed and second-stage proceedings cannot commence).
¶ 19 In the present case, the absence of an express cause-and-prejudice ruling on October 25,
2021, requires us to find that the successive petition is not deemed filed on that date, regardless of
the language in the court’s order indicating that it had granted defendant leave to file. The
postconviction court made no express determination regarding cause and prejudice until March -6- No. 1-22-0869
10, 2022, when it entered an order denying defendant’s motion for leave to file the successive
petition, expressly finding that the successive petition failed to satisfy the cause-and-prejudice test.
As the successive petition failed the cause-and-prejudice test, it never advanced to the second
stage. Accordingly, the appointment of counsel was not required.
¶ 20 Defendant argues that Ford and Thames run afoul of People v. Tidwell, 236 Ill. 2d 150
(2010), which held that no express ruling on the cause-and-prejudice test is necessary prior to
advancing the successive petition to the second stage. Defendant mischaracterizes Tidwell. In
Tidwell, the defendant was convicted of attempted first degree murder and aggravated battery with
a firearm and sentenced to 55 years’ imprisonment. Id. at 153. Defendant filed a pro se
postconviction petition alleging ineffective assistance of counsel, which was dismissed at the first
stage. Id.
¶ 21 The circuit clerk later received a successive pro se postconviction petition. Id. The
defendant did not file a motion for leave to file the successive petition. Id. at 154. The
postconviction court nonetheless considered the allegations of defendant’s successive petition as
they bore upon the threshold issue of cause and prejudice, and ultimately issued a six-page order
concluding that defendant failed to satisfy the cause-and-prejudice test. Id.
¶ 22 On appeal to the supreme court, the pertinent issue was “whether a motion or request is
required to obtain a ruling allowing or denying leave to file a successive postconviction petition
under section 122-1(f).” Id. at 156. The supreme court held:
“Section 122-1(f) speaks to a required showing on the part of a defendant, and the necessity
of action on the part of the circuit court, but it does not explicitly or necessarily mandate
the filing of a motion as a prerequisite to, or the impetus for, court action. Thus, where as
here a court is given the authority to grant leave, it may do so sua sponte, after finding -7- No. 1-22-0869
satisfaction of the stated statutory criteria (here cause and prejudice); however, it is not
required to act in the absence of a motion or request. Either way, until such time as leave
is granted, a successive petition, though received or accepted by the circuit clerk, will not
be considered ‘filed’ for purposes of further proceedings under the Act.” (Emphasis in the
original.) Id. at 158.
¶ 23 Thus, contrary to defendant’s argument here, Tidwell held only that even in the absence of
a motion for leave to file a successive postconviction petition, the postconviction court may make
a sua sponte determination of whether the successive petition meets the cause-and-prejudice test.
If the court finds that the successive petition meets the cause-and-prejudice test, it may then grant
leave to file. The Tidwell court never held that the circuit court can grant leave to file a successive
postconviction petition in the absence of an express finding that the successive petition meets the
cause-and-prejudice test.
¶ 24 As the circuit court in the present case made no express finding on October 25, 2021, that
the successive petition satisfied the cause-and-prejudice test, and instead found on March 10, 2022,
that it did not satisfy the test, the successive petition is not considered as having ever been filed or
having advanced to the second stage and therefore no appointment of counsel was necessary.
¶ 25 Next, defendant contends that we should reverse and remand for a new cause-and-prejudice
determination because the State “influenced the [postconviction] court’s determination” by
providing it with a court file to confirm whether a plea offer had been made to defendant prior to
trial. In support, defendant cites Bailey, 2017 IL 121450, in which the supreme court held that “the
State should not be permitted to participate at the cause and prejudice stage of successive
postconviction proceedings [because] the Act contemplates an independent determination by the
[postconviction] court.” Id. ¶ 24. The Bailey court found that the State had improperly participated -8- No. 1-22-0869
at the cause-and-prejudice stage, but it did not reverse and remand for further proceedings. Instead,
“[i]n the interest of judicial economy,” the court reviewed the defendant’s motion for leave to file
his successive petition and found no cause for remand because defendant had not satisfied the
cause and prejudice requirement. Id. ¶¶ 41-42. See also People v. Lusby, 2020 IL 124046, ¶ 29
(which cited Bailey and reviewed the merits of defendant’s motion for leave to file a successive
petition, in the interest of judicial economy, where the State had improperly participated at the
cause-and-prejudice stage). In accordance with Bailey and Lusby, we similarly review the merits
of defendant’s motion in the interest of judicial economy and, for the reasons that follow, we find
that defendant failed to satisfy the prejudice component of the cause-and-prejudice test.
¶ 26 Prejudice is shown by “demonstrating that 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)(West 2020). In a claim of ineffective assistance for failing to
inform defendant of a plea offer, defendant must demonstrate prejudice by showing with a
reasonable probability that he would have accepted the plea offer; and that the plea offer would
have been entered without the prosecution rescinding the offer or the trial court refusing to accept
the agreement. People v. Jellis, 2016 IL App (3d) 130779, ¶ 29.
¶ 27 Defendant’s self-serving affidavit attesting that he would have accepted the plea offer is
not sufficient to show the requisite prejudice; he also must show some independent, objective
evidence that he would have accepted the offer had counsel made him aware of it. People v. Hale,
2013 IL 113140, ¶ 18. Evidence that defendant’s case was “weak” and that there was a disparity
between the sentence he faced and a “significantly shorter plea offer” can be considered supportive
of his claim of prejudice. Id. ¶ 18, ¶ 25. Any statements by defense counsel corroborating
defendant’s claim that he would have accepted the plea offer also may be considered. Id. ¶ 25. -9- No. 1-22-0869
¶ 28 In support of his claim of prejudice, defendant here points to the weakness of the self-
defense claim in his case, the 15-year disparity between the offer of 20 years’ imprisonment and
his actual sentence of 35 years, and his defense counsel’s alleged admission that he regretted not
informing defendant about the offer. Based on this evidence of prejudice, defendant contends that
he has shown a reasonable probability that he would have accepted the State’s 20-year plea offer
instead of risking a higher sentence by proceeding to trial on his weak case.
¶ 29 However, as aptly noted by the postconviction court, defendant’s claim that he was
prejudiced by counsel’s failure to inform him of the plea offer is undercut by his initial petition, in
which he indicated that he was unwilling to entertain any plea deals and instead wanted to proceed
with trial. Specifically, in his initial petition, defendant alleged that his counsel provided
ineffective assistance, not for failing to inform him of a plea deal, but instead for twice asking the
State for a plea deal without his consent. The position defendant took in his initial petition, that he
was not willing to entertain a plea deal, contradicts his assertion in his successive petition that he
would have accepted the State’s plea deal and its concomitant 20-year prison term had he been
informed of it. On this record, we cannot say that defendant has shown a reasonable probability
that he would have accepted the State’s plea deal, and as such, he has failed to make a prima facie
case of prejudice based on his counsel’s failure to inform him of the plea offer prior to trial.
Accordingly, we affirm the denial of defendant’s motion for leave to file a successive
postconviction petition.
¶ 30 Defendant argues that by considering and crediting the position he took in his initial
petition, that he did not want to consider any plea offers, the postconviction court effectively made
a credibility determination that is foreclosed at the leave-to-file stage. See People v. Brandon, 2021
IL App (1st) 172411, ¶ 43 (the court is precluded from making factual and credibility -10- No. 1-22-0869
determinations at the leave-to-file stage). Defendant’s argument is without merit, as the
postconviction court did not make any determinations as to the relative credibility of the assertions
in his initial and successive petitions. Rather, the court correctly recognized that defendant has
taken two different positions regarding whether or not he would have entertained and accepted any
plea offers and, as such, that he has failed to show a reasonable probability that he would have
accepted the State’s plea deal with its 20-year prison term had counsel made him aware of it.
Accordingly, defendant has failed to make a prima facie case that he was prejudiced by his
counsel’s failure to inform him of the plea deal and therefore we affirm the denial of his motion
for leave to file the successive postconviction petition.
¶ 31 For all the foregoing reasons, we affirm the circuit court. As a result of our disposition of
this case, we need not address whether defendant’s successive petition met the cause component
of the cause-and-prejudice test.
¶ 32 Affirmed.
-11-