People v. Ward

2022 IL App (5th) 210293-U

Opinion

2022 IL App (5th) 210293-U NOTICE NOTICE Decision filed 08/04/22. The This order was filed under text of this decision may be NO. 5-21-0293 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent 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, ) St. Clair County. ) v. ) No. 03-CF-671 ) BRIAN E. WARD, ) Honorable ) Julie K. Katz, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court. Presiding Justice Boie and Justice Moore concurred in the judgment.

ORDER

¶1 Held: Where defendant did not satisfy the “cause” prong of the cause-and-prejudice test, the circuit court did not err in denying him leave to file a successive postconviction petition, and since any argument to the contrary would lack merit, defendant’s appointed counsel on appeal is granted leave to withdraw, and the judgment of the circuit court is affirmed.

¶2 Defendant, Brian E. Ward, appeals the circuit court’s order denying him leave to file a

successive postconviction petition. Defendant’s appointed attorney on appeal, the Office of the

State Appellate Defender (OSAD), has concluded that this appeal lacks merit. Accordingly,

OSAD has filed a motion to withdraw as counsel for defendant (see Pennsylvania v. Finley, 481

U.S. 551 (1987)) along with a brief in support of the motion. OSAD has provided defendant with

a copy of its Finley motion and brief. This court has provided him with ample opportunity to file

a written pro se brief, memorandum, etc., responding to OSAD’s motion or explaining why this

1 appeal has merit. Defendant has not filed any sort of response. Having read OSAD’s Finley

motion and brief, and having examined the record on appeal, we conclude that the instant appeal

does lack merit. There is no potential ground for appeal. Accordingly, we grant OSAD leave to

withdraw as counsel and affirm the judgment of the circuit court.

¶3 BACKGROUND

¶4 In 2005 defendant pleaded guilty to first degree murder in exchange for a 45-year prison

sentence. The circuit court admonished him that he was charged with first degree murder and, if

convicted, “could be sentenced to a period of time in the Illinois Department of Corrections

[(IDOC)], a definite period of time, between 20 and 60 years, which upon the completion of that

period of time, you would do three years of mandatory supervised release.”

¶5 The court accepted the plea, finding it voluntary. With the parties’ agreement, the court

proceeded immediately to sentencing and imposed the agreed-upon sentence. Defendant did not

move to withdraw the plea or appeal.

¶6 In 2007, defendant filed a postconviction petition, which the circuit court summarily

dismissed. On appeal, citing People v. Whitfield, 217 Ill. 2d 177 (2005), defendant argued for the

first time that the circuit court did not properly admonish him about mandatory supervised release

(MSR). This court affirmed the dismissal. In doing so, we held that defendant forfeited the MSR

claim because he did not raise it in the petition. People v. Ward, No. 5-07-0593 (2010)

(unpublished order under Illinois Supreme Court Rule 23), order at 6 (citing People v. Jones, 211

Ill. 2d 140, 148 (2004)). In a footnote, we added that the supreme court had recently held that

Whitfield did not apply to cases that became final before Whitfield was decided on December 20,

2005. We observed that, because defendant pleaded guilty on April 22, 2005, and did not appeal,

his conviction became final before Whitfield was decided. Id. at 6 n.1.

2 ¶7 In 2021, defendant sought leave to file a successive postconviction petition. The proposed

petition claimed that the court inadequately admonished him about the MSR term before accepting

his guilty plea, that he should receive day-for-day credit against his sentence, and that the IDOC

was unlawfully extending his sentence. The circuit court denied leave to file the petition, finding

that defendant did not establish cause for not raising the claims in his initial postconviction petition.

¶8 On August 24, 2021, defendant sought leave to file a second successive postconviction

petition. The proposed petition raised the same claims as the prior petition. The motion for leave

to file asserted that defendant had cause for not raising the issue sooner because he “was only made

aware after filing appeal from the denial of [his] first postconviction petition, through Appellate

Counsel *** that a 3 year term of MSR was added to my sentence.” The filing included a letter

from defense counsel dated January 9, 2008, advising defendant to file a successive postconviction

petition. Defendant asserted that he was prejudiced because he did not receive the benefit of his

bargain with the State. The trial court denied leave to file, finding that the issue was barred by res

judicata, and defendant appeals.

¶9 ANALYSIS

¶ 10 OSAD suggests three possible issues and concludes that none of them have even arguable

merit. OSAD frames the potential issues as (1) whether the trial court correctly relied on

res judicata to deny leave to file, (2) whether defendant’s Whitfield claim lacked merit, and

(3) whether defendant’s day-for-day sentencing credit lacked merit. The gist of all three issues is

whether the trial court correctly denied defendant leave to file his second successive petition. We

agree that the trial court correctly did so. To explain why, we begin with some brief background.

¶ 11 The Post-Conviction Hearing Act (Act) provides a means by which a criminal defendant

can assert that “in the proceedings which resulted in his or her conviction there was a substantial

3 denial of his or her rights under the Constitution of the United States or of the State of Illinois or

both.” 725 ILCS 5/122-1(a)(1) (West 2004). The Act permits the filing of only one petition

without leave of court. Id. § 122-1(f). Consequently, to initiate a successive postconviction

proceeding, a defendant must first obtain leave of court, which is granted only when the defendant

“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.” Id. To show cause, a defendant must identify

“an objective factor that impeded his or her ability to raise a specific claim during his or her initial

post-conviction proceedings.” Id. To show prejudice, a defendant must demonstrate “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.” Id.

¶ 12 The Unified Code of Corrections provides for a mandatory MSR term following a prison

sentence. The term

“shall be as follows: (1) for first degree murder *** 3 years[.]” 730 ILCS 5/5-8-1(d)(1) (West 2004).

¶ 13 In Whitfield, the court held that where a defendant was not admonished before pleading

guilty that an MSR term would be added to his sentence, he did not receive the benefit of his

bargain. Whitfield, 217 Ill. 2d at 189. The remedy was to reduce his sentence by the length of the

MSR term so that his sentence comported with the sentence he was told he would receive. Id. at

205.

¶ 14 The supreme court later imposed several significant restrictions on the Whitfield rule. In

People v. Morris, 236 Ill. 2d 345, 366 (2010), the court held that Whitfield did not apply to cases

that had become final before Whitfield was decided. In People v. Evans, 2013 IL 113471, ¶ 13,

the court held that, given that every person is presumed to know the law, a defendant’s claimed

ignorance of the MSR provisions could not establish cause for failing to raise the issue earlier. 4 Then, in People v. Boykins, 2017 IL 121365, ¶ 21, the court held that, to satisfy due process, the

circuit court’s admonishments need only state that an MSR term will follow a defendant’s release

from prison; the admonishments need not expressly link MSR to the defendant’s negotiated

sentence. 1

¶ 15 Here, the circuit court did tell defendant, before accepting his plea, that upon completion

of his prison sentence, he “would do three years of mandatory supervised release.” This was

sufficient under Boykin. Thus, defendant’s Whitfield claim fails on the merits.

¶ 16 We further note that, as we stated in the appeal from the denial of defendant’s first petition,

Whitfield does not govern defendant’s case, as his conviction became final before Whitfield was

decided. See Morris, 236 Ill. 2d at 366. Moreover, the only “cause” defendant cited for failing to

raise the claim earlier was that he was unaware of the MSR term (despite the trial court’s

admonishment). However, a claim of ignorance of the law does not establish cause for not raising

a claim sooner. Evans, 2013 IL 113471, ¶ 13. 2

¶ 17 Finally, we note that the circuit court denied leave to file defendant’s most recent petition

on the ground of res judicata. Res judicata applies where there has been (1) a final judgment on

the merits rendered by a court of competent jurisdiction, (2) identity of cause of action, and (3) an

identity of parties or their privies. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 335 (1996).

¶ 18 Arguably, the defendant’s substantive claims were never “decided” where we found the

issue forfeited in the former appeal and defendant’s proposed first successive petition (which we

1 Boykins acknowledged the court’s earlier statement in Morris that Whitfield required “ ‘that defendants be advised that a term of MSR will be added to the actual sentence agreed upon in exchange for a guilty plea to the offense charged.’ ” Boykins, 2017 IL 121365, ¶ 14 (quoting Morris, 236 Ill. 2d at 367). The court explained that Morris did not establish “a bright-line rule *** to satisfy due process.” Id. ¶ 21. 2 Even if ignorance of the claim were a valid excuse, defendant’s filings do not explain why he waited an additional 13 years to file a successive postconviction petition after counsel advised him to do so. 5 refer to for convenience as the second petition) was never filed. However, given the requirements

for filing a successive petition, the only real issue in conjunction with the second petition was

whether defendant could establish cause and prejudice. The circuit court held that he could not.

Defendant never (as far as the record shows) appealed that judgment so it became final. Similarly,

the only issue raised by the motion to file the present petition was whether defendant could

establish cause and prejudice. The motion added nothing new on this issue save for a 13-year-old

letter from defense counsel telling him what he was already presumed to know. Thus, the issue of

cause was decided in the earlier proceeding and res judicata applied.

¶ 19 Defendant’s proposed petition also contended that he should receive day-for-day good-

time credit and that IDOC was unlawfully extending his sentence. These arguments are difficult

to follow but appear to be related.

¶ 20 OSAD points out that the circuit court expressly told defendant at sentencing that his

sentence would be subject to “truth in sentencing,” which provides that “a prisoner who is serving

a term of imprisonment for first degree murder *** shall receive no good conduct credit and shall

serve the entire sentence imposed by the court.” 730 ILCS 5/3-6-3(a)(2)(i) (West 2004). Thus,

the trial court informed defendant that truth in sentencing applied and the statute clearly requires

it. Moreover, as with the Whitfield issue, defendant’s claimed ignorance of this provision does not

provide cause for his failure to raise it earlier. See Evans, 2013 IL 113471, ¶ 13.

¶ 21 For the foregoing reasons, we grant OSAD’s motion and affirm the circuit court’s

judgment.

¶ 22 Motion granted; judgment affirmed.