People v. Thomas

2025 IL App (5th) 230440-U

Opinion

NOTICE 2025 IL App (5th) 230440-U NOTICE Decision filed 05/07/25. The This order was filed under text of this decision may be NO. 5-23-0440 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Jefferson County. ) v. ) No. 97-CF-302 ) CHARLES BRUCE THOMAS, ) Honorable ) Jerry E. Crisel, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Presiding Justice McHaney and Justice Sholar concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in denying the defendant-appellant’s pro se motion for leave to file a sixth successive postconviction petition. The circuit court properly determined that any claims not raised on direct appeal or in his initial postconviction petition were forfeited, and any that were raised and decided were barred by res judicata. The defendant further failed to make a showing of cause and prejudice. Therefore, the judgment of the circuit court is affirmed.

¶2 In 1998, defendant, Charles Bruce Thomas, was convicted of first degree murder. Over the

next several years, he filed an original and five successive postconviction petitions, all of which

were denied. The defendant now appeals pro se from the denial of his motion for leave to file a

sixth successive postconviction petition. For the following reasons, we affirm the circuit court’s

judgment.

1 ¶3 I. BACKGROUND

¶4 The defendant was convicted of two counts of first degree murder and sentenced to two

concurrent terms of 60 years’ incarceration. We affirmed the defendant’s conviction on direct

appeal. People v. Thomas, No. 5-99-0220 (2000) (unpublished order under Illinois Supreme Court

Rule 23). In 2000, the defendant filed his first pro se postconviction petition pursuant to the Post-

Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). The circuit court appointed

counsel, and counsel filed an amended postconviction petition. The defendant then filed a motion

to discharge counsel and proceed pro se. His motion was granted, and he thereafter filed pro se a

second amended postconviction petition in 2002. The circuit court dismissed the petition, and we

affirmed. People v. Thomas, No. 5-03-0256 (2004) (unpublished order under Illinois Supreme

Court Rule 23).

¶5 In 2007, the defendant filed a pro se petition for relief from judgment pursuant to section

2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)). The circuit court

recharacterized this petition as a successive postconviction petition. After notifying the defendant

of this change, the circuit court dismissed his petition. We affirmed. People v. Thomas, No. 5-07-

0486 (2010) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶6 In 2010, the defendant filed another pro se petition for relief from judgment. The circuit

court denied the motion sua sponte, and we affirmed. People v. Thomas, 2013 IL App (5th)

110292-U. In 2013, the defendant filed another pro se petition for relief from judgment, which the

circuit court dismissed as untimely. The defendant appealed, and we dismissed the appeal for lack

of jurisdiction. People v. Thomas, No. 5-13-0375 (2014) (unpublished summary order under

Illinois Supreme Court Rule 23(c)). He filed another postjudgment petition later the same year,

which the circuit court also dismissed as untimely, and we affirmed. People v. Thomas, 2014 IL

2 App (5th) 130529-U. In 2014, the defendant filed a pro se motion for leave to file a successive

postconviction petition. The circuit court granted leave and appointed counsel for him, but the

defendant chose to proceed pro se. He then filed an amended successive postconviction petition,

which was once again dismissed and affirmed on appeal. People v. Thomas, 2021 IL App (5th)

170244-U.

¶7 Finally, on December 1, 2022, the defendant again filed a pro se motion for leave to file

another successive postconviction petition. He raised three issues in this motion: (1) that the

Attorney Act (705 ILCS 205/1 et seq. (West 2022)) and Illinois Supreme Court Rule 707 (eff. Feb.

1, 2018) are unconstitutionally vague and overbroad as applied to him; (2) that sections of the first

degree murder statute (720 ILCS 5/9-1(a)(1), (2) (West 1996)), in conjunction with the drug-

induced homicide statute (id. § 9-3.3), and the statute allowing for formal amendments to an

indictment (725 ILCS 5/111-5 (West 1996)), are collectively and individually vague and overbroad

as applied to him; and (3) that the word “means” in section 111-5(f) of the Code of Criminal

Procedure of 1963 (id. § 111-5(f)) is unconstitutionally vague, overbroad, and arbitrary as applied

to him. The defendant additionally argued that he had satisfied the cause-and-prejudice test for

filing a successive postconviction petition because his arguments involved the constitutionality of

statutes, which he asserted could be challenged at any time.

¶8 The circuit court denied the defendant’s motion for leave to file a successive postconviction

petition in a written order on February 14, 2023. The defendant filed a motion to reconsider, which

the circuit court also denied. The defendant now appeals the circuit court’s February 14, 2023,

order denying his motion for leave to file a successive postconviction petition.

¶9 The Office of the State Appellate Defender (OSAD) was appointed to represent the

defendant on appeal. On February 27, 2024, OSAD filed a motion to withdraw as counsel on

3 appeal consistent with Pennsylvania v. Finley, 481 U.S. 551 (1987). This court allowed the

defendant to file a pro se argument as to why the appeal should not be dismissed and why OSAD

should not be allowed to withdraw as counsel. The defendant filed a motion to withdraw his

appointed appellate counsel and for leave to proceed pro se, which this court granted. The

defendant subsequently filed his pro se appellant’s brief, and later filed a motion to amend or

supplement the brief. On April 23, 2024, this court granted OSAD’s motion to withdraw and the

defendant’s motion to proceed pro se. This court also accepted his pro se appellant’s brief and

granted his motion to amend. On appeal, the defendant raises the same three arguments he brought

in his 2022 motion for leave to file a sixth successive postconviction petition, as well as his same

argument regarding the cause-and-prejudice test.

¶ 10 II. ANALYSIS

¶ 11 A. Standard of Review

¶ 12 The Act provides a statutory remedy to criminal defendants who claim that substantial

violations of their constitutional rights occurred at trial. People v. Taliani, 2021 IL 125891, ¶ 53;

People v. Edwards, 2012 IL 111711, ¶ 21. A postconviction petition is a collateral attack on the

judgment, the purpose of which is to “ ‘allow inquiry into constitutional issues relating to the

conviction or sentence that were not, and could not have been, determined on direct appeal.’ ”

People v. Clark, 2023 IL 127273, ¶ 38 (quoting People v. Barrow, 195 Ill. 2d 506, 519 (2001)).

Therefore, “issues that were raised and decided on direct appeal are barred from consideration by

the doctrine of res judicata, while issues that could have been raised, but were not, are forfeited.”

Taliani, 2021 IL 125891, ¶ 53.

¶ 13 Furthermore, the Act contemplates the filing of only one postconviction petition and

prohibits the filing of a successive petition without first obtaining leave of court to do so. 725 ILCS

4 5/122-1(f) (West 2022); People v. Tidwell, 236 Ill. 2d 150, 157 (2010). The defendant forfeits any

claim not raised in his original or amended postconviction petition. Taliani, 2021 IL 125891, ¶ 53;

725 ILCS 5/122-3 (West 2022).

¶ 14 Section 122-1(f) of the Act states that:

“(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 so infected the trial that the resulting conviction or sentence violated due

process.” 725 ILCS 5/122-1(f) (West 2022).

Our courts have referred to the exception found in section 122-1(f) of the Act as the cause-and-

prejudice test; a defendant seeking this exception must submit enough evidence to allow the circuit

court to make a cause-and-prejudice determination. See People v. Bailey, 2017 IL 121450, ¶ 21;

Tidwell, 236 Ill. 2d at 161. 1

¶ 15 Because the sufficiency of a postconviction petition is a purely legal question, we review

the circuit court’s denial of a defendant’s motion for leave to file a successive postconviction

petition de novo. People v. Robinson, 2020 IL 123849, ¶ 39. Our supreme court has further held

1 The circuit court may also properly grant leave to file a successive postconviction petition where the defendant sets forth a colorable claim of actual innocence based on newly discovered evidence. See Taliani, 2021 IL 125891, ¶ 55. Here, the defendant does not make a claim of actual innocence. 5 that the denial of a motion for leave to file a successive petition alleging cause and prejudice is

reviewed de novo. Id. (citing People v. Wrice, 2012 IL 111860, ¶¶ 49-50).

¶ 16 B. The Defendant’s Prior Arguments and 2022 Motion

¶ 17 The defendant raised five issues on direct appeal. The defendant alleged that he was denied

a fair trial due to (1) the trial judge’s refusal to dismiss three jurors for cause, (2) pretrial publicity,

(3) the admission of evidence of drugs and a gun found in his home, (4) the State being allowed to

amend the indictment on the day of trial, and (5) the trial court allowing rebuttal testimony. We

addressed each argument and found no basis to overturn the decisions of the circuit court. See

Thomas, No. 5-99-0220 (unpublished order under Illinois Supreme Court Rule 23).

¶ 18 In his original postconviction petition, the defendant raised arguments of insufficient

evidence and ineffective assistance of counsel for failing to present a defense of involuntary

manslaughter. After the circuit court allowed him to proceed pro se, the defendant filed his second

amended postconviction petition, alleging: (1) ineffective assistance of counsel where trial counsel

failed to file a motion to suppress evidence found in his home, (2) that the trial court erred in

refusing to give an instruction for the lesser-included offense of involuntary manslaughter, (3) that

he was denied a fair trial where the State was permitted to amend the indictment during trial, and

(4) that appellate counsel was ineffective for failing to raise the issues on direct appeal. The circuit

court granted the State’s motion to dismiss. On appeal, we again determined that the circuit court

did not err in its ruling. Thomas, No. 5-03-0256 (unpublished order under Illinois Supreme Court

Rule 23).

¶ 19 After the circuit court denied the defendant’s five previous successive petitions, he sought

leave to file a proposed sixth successive postconviction petition in December 2022. In his motion,

he raised three further claims: (1) that the Attorney Act (705 ILCS 205/1 et seq. (West 2022)) and

6 Illinois Supreme Court Rule 707 are unconstitutionally vague and overbroad as applied to him;

(2) that sections of the first degree murder statute (720 ILCS 5/9-1(a)(1), (2) (West 1996)), in

conjunction with the drug-induced homicide statute (id. § 9-3.3), and the statute allowing for

formal amendments to an indictment (725 ILCS 5/111-5 (West 1996)), are collectively and

individually vague and overbroad as applied to him; and (3) that the word “means” in section 111-

5(f) of the Code of Criminal Procedure (id. § 111-5(f)) is unconstitutionally vague, overbroad, and

arbitrary as applied to him. The defendant contended that he satisfied the cause-and-prejudice test

because his arguments involved the constitutionality of statutes, which he asserted could be

challenged at any time.

¶ 20 In its February 14, 2023, order, the circuit court noted that, in addition to his initial petition

in 2000, the defendant had previously filed five successive postconviction petitions. All of them

had been dismissed, and all of those dismissals had been affirmed on appeal. The circuit court

further stated that any claims not raised in the original or amended petition were forfeited, and all

issues that were decided in the original postconviction proceeding were barred by res judicata.

¶ 21 The circuit court further found that the defendant had failed to show cause and prejudice

justifying an exception to the rule prohibiting successive petitions. He did not show cause because

all of the facts necessary to bring his claims were available when he filed his initial petition and

he failed to identify any objective factor that impeded him from raising his claims earlier. He also

failed to demonstrate that any prejudice occurred from his failure to assert his claims earlier,

because there was “scant probability that [the defendant] would have prevailed.” The circuit court

therefore denied his motion for leave to file a sixth successive postconviction petition, as well as

his subsequent motion to reconsider.

7 ¶ 22 C. The Attorney Act and Supreme Court Rule 707

¶ 23 In his motion for leave to file what would be his sixth successive postconviction petition,

the defendant first argues that the Attorney Act (705 ILCS 205/1 (West 2022)) and Illinois

Supreme Court Rule 707 (eff. Feb. 1, 2018) are unconstitutionally vague and overbroad as applied

to him. On appeal, he merely restates this claim, without further statement of why the circuit court

erred by not allowing him to bring his claim in a successive petition. He contends that, at trial, two

out-of-state attorneys filed a joint appearance on his behalf. Only one of the attorneys was licensed

to practice in Illinois; however, he was only present in court for the defendant’s arraignment and

the first day of voir dire. The circuit court entered a pro hac vice nunc pro tunc order authorizing

the attorney not licensed in Illinois to represent the defendant at trial.

¶ 24 The defendant argues that the Attorney Act states, “No person shall be permitted to practice

as an attorney or counselor at law within this State without having previously obtained a license

for that purpose from the Supreme Court of this State.” 705 ILCS 205/1 (West 2022). He further

argues that the out-of-state attorney did not obtain permission to represent him in Illinois as

required by Rule 707. He contends that the circuit court erred in failing to ensure that out-of-state

counsel was licensed to practice in Illinois by either obtaining a license for that purpose from the

Illinois Supreme Court or requesting permission per Rule 707.

¶ 25 While he states that his claim is that the statute and rule at issue are unconstitutionally

vague and overbroad as applied to him, he does not provide an explanation of this argument.

Rather, he alleges that the attorney was improperly allowed to represent him at trial in

contravention of the Attorney Act and Rule 707. The defendant’s argument regarding the cause-

and-prejudice showing required to permit him to file a successive postconviction petition relies on

8 raising a constitutional challenge to criminal statutes. We therefore recognize why he presents this

claim in this way; however, any alleged constitutional challenge is not supported by his arguments.

¶ 26 Moreover, the defendant presents no objective factors that prevented him from presenting

this argument at any prior point in the proceedings. See 725 ILCS 5/122-1(f) (West 2022) (cause

is shown “by identifying an objective factor that impeded his or her ability to raise a specific claim

during his or her initial post-conviction proceedings”). He further fails to demonstrate that not

raising the claim earlier resulted in a violation of his due process rights. See id. (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”).

¶ 27 In addition to failing to present any support for why he has not waived this argument, the

defendant argued ineffective assistance of trial counsel in his second amended postconviction

petition. Both the circuit court and this court rejected these arguments. While he now attempts to

bring a different claim regarding trial counsel, we note that there is no reason apparent in the record

why he could not have also raised his allegations about his improper representation by non-Illinois

counsel earlier in the proceedings. There is nothing in the record indicating that he was not aware

of his counsel’s licensure at trial, or that trial counsel was in any way insufficient. Therefore, we

find that the defendant has waived his first claim, and there is no cause and prejudice shown to

exempt him from the rule against successive petitions.

¶ 28 D. Amendments to the Indictment

¶ 29 The defendant’s second claim is that sections of the first degree murder statute (720 ILCS

5/9-1(a)(1), (2) (West 1996)), in conjunction with the drug-induced homicide statute (id. § 9-3.3),

and the statute allowing for formal amendments to an indictment (725 ILCS 5/111-5 (West 1996)),

9 are collectively and individually vague and overbroad as applied to him. He again merely restates

this claim in his argument on appeal.

¶ 30 In support of this claim, he alleges that the circuit court impermissibly allowed the State to

amend the indictment at the start of trial without a hearing to establish probable cause or submitting

the amendment to the grand jury for review. The grand jury returned a bill of indictment listing

two counts of first degree murder through blunt force trauma to the victim’s face and head. The

State’s amendment added an alternate cause of death to both counts, so that the indictment included

“and/or” by forcing the victim to ingest cocaine, a controlled substance.

¶ 31 The defendant contends that his due process right was violated because he was tried and

convicted on charges that differed from the grand jury’s indictment. He states that he was entitled

to notice of the offenses charged with sufficient specificity to enable a proper defense. See People

v. Alexander, 93 Ill. 2d 73, 79 (1982). Additionally, he contends that the amendment did not

reference the drug-induced homicide statute (720 ILCS 5/9-3.3 (West 1996)), despite allegedly

having the effect of adding a new charge to the indictment. He argues that he was not able to

present a defense to this supposed new charge, nor was it clear whether he was actually being

charged with drug-induced homicide.

¶ 32 In summary, the defendant takes issue with the circuit court’s decision to allow the State’s

last-minute amendment to the indictment. The defendant challenged the amendment both on direct

appeal and in his initial postconviction petition. His titling this claim as a constitutional challenge

to the abovementioned statutes does not alter the substance of the claim, and he does not present

any argument as to how these statutes are vague and overbroad as applied to him. Therefore, we

find that this claim is barred by res judicata, and, to the extent that the defendant raises any new

10 points on this barred issue, he has forfeited them by failing to raise them on direct appeal or in his

initial petition.

¶ 33 E. Amendment of the Indictment

¶ 34 Thirdly, the defendant argues that the word “means” in section 111-5(f) of the Code of

Criminal Procedure (725 ILCS 5/111-5(f) (West 1996)) is unconstitutionally vague, overbroad,

and arbitrary as applied to him. This claim again concerns the State’s amendment to the indictment,

as discussed in the previous section.

¶ 35 Section 111-5(f) of the Code of Criminal Procedure allows for the amendment of an

indictment “on motion by the State’s Attorney or defendant at any time because of formal defects,

including *** [t]he use of alternative or disjunctive allegations as to the acts, means, intents or

results charged.” (Emphasis added.) Id. The defendant argues that, by allowing the State to add an

alternate theory of the means used to commit the offense of first degree murder, the circuit court

improperly permitted the State to combine the first degree murder statute and the drug-induced

homicide statute. He further states that this is contrary to the intent and purpose of the statute

allowing for formal amendments to indictments.

¶ 36 We find that this third claim fails for the same reasons as stated above in our discussion of

his second claim. The defendant does not support his contention that the statute at issue is

unconstitutionally vague, overbroad, and/or arbitrary as applied to him. Rather, he raises the same

argument about the amendment to the indictment that both the circuit court and this court have

previously reviewed and dismissed. Furthermore, we reiterate that the defendant was aware of the

amendment before his direct appeal and before his first postconviction petition; anything that he

adds here that he did not raise at either of these previous points is forfeited.

11 ¶ 37 F. Cause and Prejudice

¶ 38 Finally, we have already addressed the defendant’s last argument, in which he contends

that he need not make a showing of cause and prejudice to file a successive postconviction petition

where his claims challenge the constitutionality of criminal statutes. As we have stated in our

discussion of his claims, he does not raise any constitutional challenge of a statute, and we

therefore need not review his argument that he may raise such claims at any time. Since the

defendant has not submitted any evidence or argument showing cause and prejudice, we further

find that the circuit court did not err in determining, for the reasons stated in its February 14, 2023,

order, that the exception found in section 122-1(f) of the Act is not applicable to the defendant’s

successive petition.

¶ 39 While the defendant has attempted to restyle his claims as newly raised arguments, the

record shows that the substance of his claims have either already been addressed and decided on

direct appeal and in his previous postconviction petitions, or are waived because he could have

timely raised these issues. The doctrine of res judicata bars his previously-addressed claims, and

he cannot obtain relief under the Act by rephrasing those same claims. See Clark, 2023 IL 127273,

¶ 41. Additionally, to the extent that the defendant raises any new issues, the record shows that

nothing prevented him from presenting them on direct appeal or in previous postconviction

petitions; therefore, he has forfeited those arguments. See Edwards, 2012 IL 111711, ¶ 21.

¶ 40 III. CONCLUSION

¶ 41 For the reasons stated, the circuit court did not err in denying the defendant’s motion for

leave to file a successive postconviction petition. The judgment of the circuit court is affirmed.

¶ 42 Affirmed.