2020 IL App (4th) 190249-U NOTICE FILED This order was filed under Supreme October 16, 2020 Court Rule 23 and may not be cited NO. 4-19-0249 Carla Bender as precedent by any party except in the 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. ) Morgan County TONY W. SHOEMAKER, ) No. 00CF21 Defendant-Appellant. ) ) Honorable ) Adam Giganti, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices DeArmond and Holder White concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err in denying defendant’s October 2018 motion for leave to file a successive postconviction petition.
¶2 On October 22, 2018, defendant, Tony W. Shoemaker, filed a motion for leave to
file a successive petition for postconviction relief pursuant to the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 to 122-7 (West 2018)). On March 18, 2019, the trial court denied
defendant’s motion for leave to file a successive petition. Defendant appealed. The Office of the
State Appellate Defender (OSAD) was appointed to represent defendant on appeal. On July 17,
2020, citing Pennsylvania v. Finley, 481 U.S. 551 (1987), and Illinois law, OSAD filed a motion
to withdraw as defendant’s counsel on appeal. This court granted defendant leave to file a
response to OSAD’s motion by August 21, 2020. Defendant did not file a response. After
reviewing defendant’s October 22, 2018, pro se motion for leave to file a successive postconviction petition, the petition defendant attached to his motion, and the record in this case,
we grant OSAD’s motion to withdraw and affirm the trial court’s denial of defendant’s motion
for leave to file a successive postconviction petition.
¶3 I. BACKGROUND
¶4 In May 2000, defendant pled guilty to one count of aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(2) (West 2000)) and one count of home invasion (720 ILCS
5/12-11(a)(2) (West 2000)). Before entering his plea, the trial court did not admonish defendant
he could be ordered to pay restitution. The trial court sentenced defendant to consecutive 30-
year sentences on each count.
¶5 In deciding defendant’s direct appeal, this court affirmed defendant’s conviction
and sentence but reversed the trial court’s order striking defendant’s pro se motions and
remanded the matter for an adequate inquiry into the factual basis for defendant’s claims of
ineffective assistance of counsel. People v. Shoemaker, No. 4-01-0300 (2002) (unpublished
order under Illinois Supreme Court Rule 23). While the case was on remand, defendant filed a
postconviction petition in May 2003, which the trial court summarily dismissed in August 2003.
In October 2003, the trial court denied defendant’s ineffective assistance claims. Defendant
appealed both of the trial court’s decisions. This court consolidated the two appeals and
affirmed. People v. Shoemaker, 358 Ill. App. 3d 257, 262, 831 N.E.2d 1201, 1206 (2005).
¶6 In September 2013, defendant filed a motion for leave to file a successive
postconviction petition, asserting the trial court did not properly admonish him pursuant to
Illinois Supreme Court Rule 402 (eff. July 1, 1997) as to the maximum penalty he was eligible
for because the court did not mention he was subject to a restitution order. Defendant claimed he
would not have entered his guilty plea if he had been aware he could be ordered to pay
-2- restitution. The trial court denied defendant’s motion because defendant failed to satisfy the
cause-and-prejudice test.
¶7 Defendant appealed the denial of his motion to file a successive postconviction
petition. This court affirmed, stating:
“Defendant failed to raise this claim in his other postjudgment proceedings,
including his initial 2003 postconviction petition. He claims he did not raise the
issue because, prior to the supreme court’s decision in Snyder, his claim lacked
merit. See People v. Snyder, 2011 IL 111382. According to defendant, the
remedy of vacating his guilty plea was not available until after Snyder.
Although our supreme court specifically held in Snyder the trial court’s
failure to provide a restitution admonishment rendered a guilty plea involuntary
(Snyder, 2011 IL 111382, ¶ 31), the claim was ‘not new or novel.’ See People v.
Guerrero, 2012 IL 112020, ¶ 20 (the lack of precedent for a position differs from
‘cause’ for failing to raise an issue, and a defendant must raise the issue, even
when the law is against him, in order to preserve it for review). Other courts had
previously addressed this precise issue. As OSAD notes, legal precedent existed,
prior to Snyder, that noncompliance with Rule 402 admonishments could
arguably result in finding a defendant’s plea involuntary.” People v. Shoemaker,
No. 4-14-0846 (2017) (unpublished summary order under Illinois Supreme Court
Rule 23(c)).
This court concluded defendant could not establish the required cause and prejudice because
“[r]egardless of whether defendant may have been successful in prior proceedings when raising
the claim, the claim existed, and it should have been raised in order to properly preserve the
-3- issue.” Shoemaker, No. 4-14-0864 (2017) (unpublished summary order under Illinois Supreme
Court Rule 23(c)).
¶8 In October 2018, defendant filed another motion for leave to file a successive
petition for postconviction relief. Defendant again argued he was not properly admonished as to
the maximum penalty he faced before entering a guilty plea because the trial court did not tell
him he could be ordered to pay restitution. Again, defendant relied on Snyder, arguing he was
not properly admonished and his guilty plea should be vacated. According to defendant’s
motion, he had “cause” to file his successive postconviction petition because Snyder was a new
rule of law unavailable to him when he filed his initial postconviction petition.
¶9 On March 18, 2019, the trial court denied defendant’s motion for leave to file a
successive petition for postconviction relief. This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 Defendant appeals the denial of his October 2018 motion for leave to file a
successive postconviction petition, which was his second motion to file a successive petition.
Our supreme court has noted the procedural bar of waiver, in the context of successive
postconviction petitions, is more than a mere principle of judicial administration. People v.
Pitsonbarger, 205 Ill. 2d 444, 458, 793 N.E.2d 609, 620 (2002). Instead, it is statutorily
mandated. Pitsonbarger, 205 Ill. 2d at 458, 793 N.E.2d at 620-21. “Only when fundamental
fairness so requires will the strict application of the statutory bar be relaxed.” Pitsonbarger, 205
Ill. 2d at 458, 793 N.E.2d at 621.
¶ 12 This case does not involve a denial of defendant’s first motion to file a successive
postconviction petition. Instead, we are concerned with the denial of defendant’s second motion
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2020 IL App (4th) 190249-U NOTICE FILED This order was filed under Supreme October 16, 2020 Court Rule 23 and may not be cited NO. 4-19-0249 Carla Bender as precedent by any party except in the 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. ) Morgan County TONY W. SHOEMAKER, ) No. 00CF21 Defendant-Appellant. ) ) Honorable ) Adam Giganti, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices DeArmond and Holder White concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not err in denying defendant’s October 2018 motion for leave to file a successive postconviction petition.
¶2 On October 22, 2018, defendant, Tony W. Shoemaker, filed a motion for leave to
file a successive petition for postconviction relief pursuant to the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 to 122-7 (West 2018)). On March 18, 2019, the trial court denied
defendant’s motion for leave to file a successive petition. Defendant appealed. The Office of the
State Appellate Defender (OSAD) was appointed to represent defendant on appeal. On July 17,
2020, citing Pennsylvania v. Finley, 481 U.S. 551 (1987), and Illinois law, OSAD filed a motion
to withdraw as defendant’s counsel on appeal. This court granted defendant leave to file a
response to OSAD’s motion by August 21, 2020. Defendant did not file a response. After
reviewing defendant’s October 22, 2018, pro se motion for leave to file a successive postconviction petition, the petition defendant attached to his motion, and the record in this case,
we grant OSAD’s motion to withdraw and affirm the trial court’s denial of defendant’s motion
for leave to file a successive postconviction petition.
¶3 I. BACKGROUND
¶4 In May 2000, defendant pled guilty to one count of aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(2) (West 2000)) and one count of home invasion (720 ILCS
5/12-11(a)(2) (West 2000)). Before entering his plea, the trial court did not admonish defendant
he could be ordered to pay restitution. The trial court sentenced defendant to consecutive 30-
year sentences on each count.
¶5 In deciding defendant’s direct appeal, this court affirmed defendant’s conviction
and sentence but reversed the trial court’s order striking defendant’s pro se motions and
remanded the matter for an adequate inquiry into the factual basis for defendant’s claims of
ineffective assistance of counsel. People v. Shoemaker, No. 4-01-0300 (2002) (unpublished
order under Illinois Supreme Court Rule 23). While the case was on remand, defendant filed a
postconviction petition in May 2003, which the trial court summarily dismissed in August 2003.
In October 2003, the trial court denied defendant’s ineffective assistance claims. Defendant
appealed both of the trial court’s decisions. This court consolidated the two appeals and
affirmed. People v. Shoemaker, 358 Ill. App. 3d 257, 262, 831 N.E.2d 1201, 1206 (2005).
¶6 In September 2013, defendant filed a motion for leave to file a successive
postconviction petition, asserting the trial court did not properly admonish him pursuant to
Illinois Supreme Court Rule 402 (eff. July 1, 1997) as to the maximum penalty he was eligible
for because the court did not mention he was subject to a restitution order. Defendant claimed he
would not have entered his guilty plea if he had been aware he could be ordered to pay
-2- restitution. The trial court denied defendant’s motion because defendant failed to satisfy the
cause-and-prejudice test.
¶7 Defendant appealed the denial of his motion to file a successive postconviction
petition. This court affirmed, stating:
“Defendant failed to raise this claim in his other postjudgment proceedings,
including his initial 2003 postconviction petition. He claims he did not raise the
issue because, prior to the supreme court’s decision in Snyder, his claim lacked
merit. See People v. Snyder, 2011 IL 111382. According to defendant, the
remedy of vacating his guilty plea was not available until after Snyder.
Although our supreme court specifically held in Snyder the trial court’s
failure to provide a restitution admonishment rendered a guilty plea involuntary
(Snyder, 2011 IL 111382, ¶ 31), the claim was ‘not new or novel.’ See People v.
Guerrero, 2012 IL 112020, ¶ 20 (the lack of precedent for a position differs from
‘cause’ for failing to raise an issue, and a defendant must raise the issue, even
when the law is against him, in order to preserve it for review). Other courts had
previously addressed this precise issue. As OSAD notes, legal precedent existed,
prior to Snyder, that noncompliance with Rule 402 admonishments could
arguably result in finding a defendant’s plea involuntary.” People v. Shoemaker,
No. 4-14-0846 (2017) (unpublished summary order under Illinois Supreme Court
Rule 23(c)).
This court concluded defendant could not establish the required cause and prejudice because
“[r]egardless of whether defendant may have been successful in prior proceedings when raising
the claim, the claim existed, and it should have been raised in order to properly preserve the
-3- issue.” Shoemaker, No. 4-14-0864 (2017) (unpublished summary order under Illinois Supreme
Court Rule 23(c)).
¶8 In October 2018, defendant filed another motion for leave to file a successive
petition for postconviction relief. Defendant again argued he was not properly admonished as to
the maximum penalty he faced before entering a guilty plea because the trial court did not tell
him he could be ordered to pay restitution. Again, defendant relied on Snyder, arguing he was
not properly admonished and his guilty plea should be vacated. According to defendant’s
motion, he had “cause” to file his successive postconviction petition because Snyder was a new
rule of law unavailable to him when he filed his initial postconviction petition.
¶9 On March 18, 2019, the trial court denied defendant’s motion for leave to file a
successive petition for postconviction relief. This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 Defendant appeals the denial of his October 2018 motion for leave to file a
successive postconviction petition, which was his second motion to file a successive petition.
Our supreme court has noted the procedural bar of waiver, in the context of successive
postconviction petitions, is more than a mere principle of judicial administration. People v.
Pitsonbarger, 205 Ill. 2d 444, 458, 793 N.E.2d 609, 620 (2002). Instead, it is statutorily
mandated. Pitsonbarger, 205 Ill. 2d at 458, 793 N.E.2d at 620-21. “Only when fundamental
fairness so requires will the strict application of the statutory bar be relaxed.” Pitsonbarger, 205
Ill. 2d at 458, 793 N.E.2d at 621.
¶ 12 This case does not involve a denial of defendant’s first motion to file a successive
postconviction petition. Instead, we are concerned with the denial of defendant’s second motion
to file a successive postconviction petition. Defendant’s second motion raised the same issue as
-4- his first motion—whether the trial court erred in not admonishing him he could be subject to a
restitution order. Even though this court previously held defendant’s claim was not “new or
novel,” defendant could have raised the claim in his initial postconviction petition, and defendant
could not satisfy the “cause and prejudice” test necessary to raise the issue in a successive
postconviction petition (Shoemaker, No. 4-14-0846 (2017) (unpublished summary order under
Illinois Supreme Court Rule 23(c))), defendant again argues he could not have raised this
argument earlier because, prior to our supreme court’s decision in Snyder, his claim lacked merit.
¶ 13 We hold our decision here is controlled by the law-of-the-case doctrine, which is
related to res judicata and states “rulings made on points of law by a reviewing court are binding
in the trial court upon remand and on subsequent appeals to the same reviewing court unless a
higher court has changed the law.” People v. Anderson, 2015 IL App (2d) 140444, ¶ 27, 48
N.E.3d 1134. “There are two exceptions to the law-of-the-case doctrine: (1) if a higher
reviewing court makes a contrary ruling on the same issue after the lower court’s decision, and
(2) if a reviewing court determines that its prior decision was palpably erroneous.” Anderson,
2015 IL App (2d) 140444, ¶ 27. Because neither of these exceptions apply, we hold the trial
court did not err in denying defendant’s October 2018 motion for leave to file a successive
postconviction petition.
¶ 14 III. CONCLUSION
¶ 15 For the reasons stated, we grant OSAD’s motion to withdraw and affirm the trial
court’s denial of defendant’s October 2018 motion for leave to file a successive postconviction
petition.
¶ 16 Affirmed.
-5-