People v. Roberts

2020 IL App (5th) 170461-U

Opinion

NOTICE 2020 IL App (5th) 170461-U NOTICE Decision filed 12/23/20. The This order was filed under text of this decision may be NO. 5-17-0461 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE 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, ) Saline County. ) v. ) No. 13-CF-79 ) JAMES G. ROBERTS, ) Honorable ) Todd D. Lambert, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Boie and Justice Welch concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in denying the defendant’s motion for leave to file a successive postconviction petition, and any argument to the contrary would lack merit, and therefore the defendant’s appointed appellate counsel is granted leave to withdraw, and the judgment of the circuit court is affirmed.

¶2 The defendant, James G. Roberts, is serving the first of two consecutive prison sentences

for sex offenses against children. He appeals from the circuit court’s order denying his motion for

leave to file a successive petition for relief under the Post-Conviction Hearing Act (725 ILCS

5/122-1 et seq. (West 2018)). The defendant’s appointed attorney in this appeal, the Office of the

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

has filed with this court a motion to withdraw as counsel, along with a memorandum of law in

support thereof. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD provided the defendant

1 with a copy of its Finley motion and the accompanying memorandum. This court gave the

defendant ample opportunity to file a written response to OSAD’s motion, or a brief, etc.,

explaining why his appeal has merit, but the defendant has not taken advantage of that opportunity.

This court has examined OSAD’s Finley motion and memorandum, as well as the entire record on

appeal, and has determined that this appeal does indeed lack merit.

¶3 BACKGROUND

¶4 In March 2013, the State filed a four-count information against the defendant. Counts I

and II charged the defendant with predatory criminal sexual assault of a child (720 ILCS 5/11-

1.40(a)(1) (West 2012)), a Class X felony. Counts III and IV charged the defendant with

aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i)), a Class 2 felony. A young girl, I.D., was

the named victim in counts I, II, and III. A young boy, S.D., was the named victim in count IV.

¶5 On August 7, 2014, the defendant, defense counsel, and a prosecutor appeared before the

circuit court. The prosecutor and defense counsel informed the court that the parties had reached

a plea agreement pursuant to which the defendant would plead guilty to predatory criminal sexual

assault of a child, as charged in count II, and aggravated criminal sexual abuse, as charged in count

IV, while counts I and III would be dismissed, and on count II the defendant would be sentenced

to imprisonment for a term of 11 years, to be followed by mandatory supervised release (MSR)

for a term of three years to natural life, and on count IV he would be sentenced to imprisonment

for three years, to be followed by MSR for two years, with the prison terms to be served

consecutively, plus he would pay a fine of $11,548 and various statutorily-mandated financial

obligations. In addition, the defendant would plead guilty to one felony sex offense in a separate

case, Saline County case number 13-CF-86, for an agreed-upon sentence, and the charge(s) in a

third case, Saline County case number 13-CF-144, would be dismissed.

2 ¶6 After hearing the terms of the parties’ plea agreement, the circuit court admonished the

defendant as to the nature of the charges and the possible penalties, and the defendant indicated

his understanding. The court admonished the defendant as to his right to plead guilty or not guilty,

his right to a trial, whether by a jury or by the court alone, his rights at trial, including the right to

testify or not to testify, the presumption of innocence, and the State’s burden of proof, and the

defendant indicated his understanding. The defendant also indicated his understanding that a plea

of guilty would serve to waive all of those rights, and he indicated that he chose to plead guilty

without any threats, coercion, or intimidation, and without any promises outside the terms of the

plea agreement. The State presented a factual basis for the pleas, which included admissions by

the defendant to police interrogators. The defendant pleaded guilty in accordance with the plea

agreement, and the court accepted the pleas, finding that they were knowing, intelligent, and

voluntary. The State informed the court that the defendant did not have any prior convictions, and

the court pronounced the agreed-upon sentences. Finally, the court admonished the defendant as

to his right to appeal and how to preserve that right, and the defendant indicated his understanding.

¶7 The defendant did not file a motion to withdraw his guilty pleas. He did not file a notice

of appeal from the judgment of conviction.

¶8 In April 2016, approximately 20 months after the guilty-plea hearing and sentencing, the

defendant filed with the circuit court a motion for copies of the transcripts and the common law

record in his case, explaining that he needed those items in order to prepare a petition for

postconviction relief. The circuit court promptly denied the defendant’s motion. In June 2016,

the defendant filed a pro se notice of appeal from the denial order, thus initiating the appeal in

People v. Roberts, No. 5-16-0268. This court, after noting that the notice of appeal had been filed

3 late and that it concerned a matter that was interlocutory in nature, dismissed the appeal for lack

of appellate jurisdiction.

¶9 In July 2017, the defendant filed a pro se petition for postconviction relief. It was the

defendant’s first postconviction petition. In it, the defendant presented an assortment of claims,

including this one:

“The mother of I.D. and S.D. and her parents intimidated my wife on [the] courthouse

steps, while I was with [my] lawyer inside. I ask[ed] [my lawyer] to have them arrested,

he informed me he didn’t do that anymore. My wife was told by another attorney that [my

attorney] should have arrested them. The courthouse camera has it on record.”

The petition was accompanied by an affidavit from the defendant, wherein he stated that the

petition’s contents were true. The petition was not accompanied by any other affidavit or by any

other evidence supporting the petition’s allegations.

¶ 10 On July 12, 2017, the circuit court entered a written order finding that the defendant’s first

postconviction petition was frivolous or patently without merit. The court summarily dismissed

the petition. The defendant did not appeal from the summary dismissal of his first postconviction

petition.

¶ 11 In August 2017, the clerk of the circuit court file-stamped a second pro se postconviction

petition from the defendant. (This second petition was not accompanied by a motion for leave to

file a successive postconviction petition.) In this second petition, the defendant stated that he

“basis [sic] his claim to relief under the Actual Innocence Act.” However, the defendant did not

mention the subject of innocence anywhere else in the petition; he did not describe any evidence

indicative of actual innocence. Instead, the defendant presented these claims: that his arrest was

unlawful, that he was not placed in a line-up or positively identified as the perpetrator, and that

4 counsel was ineffective for failing to challenge the unlawful arrest, for failing to challenge the

sufficiency of the evidence, for failing to listen to the defendant’s account of events, and for failing

to formulate a defense. Also in August 2017, the circuit court entered a docket-entry order, striking

the second postconviction petition on the ground that the defendant had not obtained leave of court

to file a successive postconviction petition. The defendant did not file a motion to reconsider that

ruling. He did not file a notice of appeal from the judgment.

¶ 12 On October 5, 2017, the defendant filed a pro se motion for leave to file a successive

postconviction petition. The motion for leave was not accompanied by a postconviction petition.

The defendant’s motion for leave included these two paragraphs:

“2. There is cause for my failure to bring the claim contained in the current petition

in my previous petition, in that my lawyer was ineffective for failing to introduce a witness

in my defense. Trial counsel was advised of a potential witness and failed to introduce

such witness.

3. There is prejudice resulting from the failure to bring [the] claim earlier, because

the claim so infects my judgment of conviction or sentence violated due process [sic], in

that, had trial counsel introduced [the] key witness the outcome would have been different,

resulting in a not guilty verdict.”

Elsewhere in the motion for leave, the defendant stated that he wanted to raise a claim that the

attorney who represented him in the proceedings that resulted in his conviction had provided

ineffective assistance by “failing to introduce a witness in [the defendant’s] defense,” even though

the attorney had been “advised of” the witness. The motion for leave did not identify this uncalled

witness, and it did not include any description of the witness’s potential testimony.

5 ¶ 13 Accompanying the defendant’s motion for leave to file a successive postconviction petition

was the affidavit of Alice R. Roberts (Alice), wife of the defendant. Alice stated that she dropped

off the defendant at the Saline County courthouse and then left to run an errand. Upon her return

to the courthouse, three relatives of the complainants approached her. The three “said all kind[s]

of words about how they wouldn’t stay married to that no good husband of [mine]. In other words

they tried to intimidate me so [I] would not testify for my husband.” Alice further stated that she

was her husband’s “only witness,” but after the courthouse incident with the complainants’ three

relatives, the attorney “didn’t want [her] at the courthouse with [her] husband any more,” for fear

of another such incident. The affidavit did not describe the testimony that Alice would have given,

or might have given, if she had been called as a witness at a trial or other proceeding.

¶ 14 When read in the light of Alice’s affidavit, the defendant’s motion for leave appeared to

express a desire to raise a claim that his former attorney provided ineffective assistance in not

calling the defendant’s wife, Alice, as a witness. Still, neither the motion nor the affidavit

described Alice’s potential testimony at a trial or at any other type of proceeding.

¶ 15 On October 31, 2017, the circuit court entered a docket-entry order denying the defendant’s

motion for leave to file a successive postconviction petition. The court stated, inter alia, that the

defendant had failed to show cause for not including in his first postconviction petition the claim

that he sought to raise in a successive petition. The court also stated that the defendant’s criticism

of counsel for not calling a witness was “nonsensical” in light of the fact that the defendant pleaded

guilty and no trial was held.

¶ 16 On November 27, 2017, the defendant filed a pro se notice of appeal, thus perfecting the

instant appeal. On the defendant’s motion, the circuit court appointed OSAD as appellate counsel.

6 ¶ 17 ANALYSIS

¶ 18 This appeal is from the circuit court’s order denying the defendant’s motion for leave to

file a successive postconviction petition. As previously noted, the defendant’s appointed attorney

in this appeal, OSAD, has filed a Finley motion to withdraw as counsel, based upon its conclusion

that this appeal lacks arguable merit. In an accompanying memorandum of law, OSAD discusses

two potential issues in this appeal, viz.: (1) whether the circuit court erred in denying the

defendant’s motion for leave to file a successive postconviction petition, and (2) whether the claim

that the defendant sought to raise in a successive petition was res judicata. This court will address

both potential issues, after outlining the law applicable to successive postconviction petitions.

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

a procedural mechanism through which a criminal defendant may assert that his constitutional

rights were substantially violated during the proceedings that resulted in his conviction. Id. § 122-

1(a)(1); People v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002). The Act contemplates the filing of

only one postconviction petition. 725 ILCS 5/122-3 (West 2018) (any constitutional claim “not

raised in the original or an amended petition is waived”); People v. Bailey, 2017 IL 121450, ¶ 15.

A defendant may file a successive postconviction petition only if he seeks and obtains leave of the

circuit court. 725 ILCS 5/122-1(f) (West 2018). There are only two circumstances in which a

circuit court may grant a defendant leave to file a successive postconviction petition, viz.: where

the defendant establishes “cause” and “prejudice,” and where he sets forth a colorable claim of

actual innocence. People v. Edwards, 2012 IL 111711, ¶¶ 22-23.

¶ 20 In the instant case, the defendant attempted to show cause and prejudice in his motion for

leave to file a successive petition. His motion for leave did not include a claim of actual innocence.

7 ¶ 21 Under section 122-1(f) of the Act, a defendant may pursue a successive postconviction

proceeding if he demonstrates “cause” for his failure to bring his constitutional claim in his first

postconviction proceeding and also demonstrates that “prejudice” resulted from that previous

failure. See 725 ILCS 5/122-1(f) (West 2018). Cause is shown by identifying some “objective

factor” that “impeded” the defendant’s ability to raise his claim during his first postconviction

proceeding. Id. Prejudice is shown by demonstrating that the claimed constitutional violation “so

infected the trial that the resulting conviction or sentence violated due process.” Id. A defendant

cannot obtain leave of court to file a successive petition unless he satisfies both prongs of this

cause-and-prejudice test. People v. Guerrero, 2012 IL 112020, ¶ 15. When a court examines a

motion for leave to file a successive postconviction petition, it should ascertain only whether the

defendant has alleged facts that make “a prima facie showing of cause and prejudice.” Bailey,

2017 IL 121450, ¶ 24.

¶ 22 OSAD’s first potential issue in this appeal is whether the circuit court erred in denying the

defendant’s motion for leave to file a successive postconviction petition. This court’s review is

de novo. People v. Gillespie, 407 Ill. App. 3d 113, 124 (2010). OSAD suggests that the defendant,

in his motion for leave to file a successive petition, failed to provide any meaningful or persuasive

information relating to either cause or prejudice.

¶ 23 In regard to cause, the defendant penned one short paragraph in his motion for leave:

“There is cause for my failure to bring the claim contained in the current petition in my previous

petition, in that my lawyer was ineffective for failing to introduce a witness in my defense. Trial

counsel was advised of a potential witness and failed to introduce such witness.” Nothing in this

short paragraph identifies any objective factor that impeded the defendant’s ability to raise his

claims during his first postconviction proceeding. Before the judgment of conviction was even

8 entered in this case, the defendant was surely aware of any failure on the part of counsel to call the

defendant’s wife as a witness. Therefore, there simply was no good reason for the defendant’s

failure to include that claim in his first postconviction petition. The defendant’s failure to

demonstrate cause disqualified the defendant from obtaining leave to file a successive

postconviction petition, leaving the circuit court with no real choice but to deny the defendant’s

motion for leave.

¶ 24 In regard to prejudice, the defendant, in his motion for leave to file a successive

postconviction petition, stated the following: “There is prejudice resulting from the failure to bring

[the] claim earlier, because the claim so infects my judgment of conviction or sentence violated

due process [sic], in that, had trial counsel introduced [the] key witness the outcome would have

been different, resulting in a not guilty verdict.” Neither the motion for leave nor the defendant’s

wife’s affidavit, which was attached to the motion for leave, gives any hint as to what the

defendant’s wife’s testimony would have been, or how it might have impacted a trial. Unless a

court has some idea about the content of an uncalled witness’s potential testimony, it has no way

of knowing whether an attorney may have been ineffective for not calling that witness.

Furthermore, nowhere in the motion for leave does the defendant mention a key fact about his

case, namely, that he pleaded guilty, and that he pleaded guilty pursuant to a fully negotiated

agreement with the State, and no trial was held in his case. The transcript of the guilty-plea

hearing, summarized supra, clearly shows that the circuit court carefully admonished and

questioned the defendant before accepting his guilty pleas. The transcript also makes plain that

the defendant pleaded guilty knowingly, intelligently, and voluntarily; nothing in the transcript

suggests an unknowing, unintelligent, or involuntary plea. Furthermore, as OSAD notes in the

memorandum of law that accompanies its Finley motion, the defendant never has claimed that his

9 pleas were unknowing, unintelligent, or involuntary. His valid guilty pleas waived all

nonjurisdictional errors that may have occurred prior to the plea, including counsel’s alleged

failure to call the defendant’s wife as a witness. See People v. Townsell, 209 Ill. 2d 543, 545

(2004) (a voluntary guilty plea waives all nonjurisdictional errors or irregularities, including

constitutional ones). The defendant failed to establish any prejudice flowing from the alleged

ineffectiveness of counsel.

¶ 25 OSAD’s second potential issue in this appeal is whether the ineffective-assistance claim

that the defendant sought to raise in a successive petition was res judicata. OSAD suggests that

the ineffective-assistance claim was indeed res judicata. In the memorandum of law

accompanying its Finley motion, OSAD points out that the defendant’s first postconviction

petition, which was both filed and summarily dismissed in July 2017, included a claim that “[t]he

mother of I.D. and S.D. and her parents intimidated [the defendant’s] wife on [the] courthouse

steps, while [the defendant] was with [his] lawyer inside,” and that the defendant asked his attorney

to have those people arrested, but the attorney replied that he “didn’t do that anymore.” This earlier

claim did not state that the defendant’s wife was a potential witness, or that the defendant’s

attorney had been advised that she was a potential witness but nevertheless did not call her as a

witness, which was the claim that the defendant sought to raise in a successive petition. Therefore,

this court is not prepared to agree with OSAD that the defendant’s ineffective-assistance claim

was adjudicated during the first postconviction proceeding and is therefore res judicata. However,

the fact remains that the defendant could have raised his ineffective-assistance claim during his

first postconviction proceeding, as noted supra in the discussion of cause. The ineffective-

assistance claim certainly was waived. See 725 ILCS 5/122-3 (West 2018) (“Any claim of

10 substantial denial of constitutional rights not raised in the original or an amended petition is

waived.”).

¶ 26 CONCLUSION

¶ 27 For the reasons explained above, this court concludes that the circuit court did not err in

denying the defendant’s motion for leave to file a successive postconviction petition. Given the

obvious weakness of the defendant’s motion for leave, no other ruling was possible. Any argument

to the contrary would lack merit. Accordingly, OSAD is granted leave to withdraw was counsel

on appeal, and the judgment of the circuit court is affirmed.

¶ 28 Motion granted; judgment affirmed.