NOTICE 2016 IL App (5th) 130579 Decision filed 11/07/16. The text of this decision may be NO. 5-13-0579 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Fayette County. ) v. ) No. 07-CF-153 ) MICHAEL E. YORK, ) Honorable ) James L. Roberts, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Stewart and Cates concurred in the judgment and opinion.
OPINION
¶1 This appeal involves a provision of the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2012)) which allows a defendant to voluntarily withdraw his
petition (725 ILCS 5/122-5 (West 2012)). The statute does not specify when a petitioner
who voluntarily withdraws his petition may refile it. The defendant in this case
voluntarily withdrew his petition after it was docketed for second-stage proceedings.
Sixteen months later, he filed a new pro se petition, raising the same issue he raised in his
earlier petition and asking the court to "set aside the withdrawal" of his earlier petition.
The trial court summarily dismissed the petition, providing two alternative bases for its
1 ruling: (1) if viewed as a successive petition, the court found that the defendant did not
allege facts establishing cause and prejudice and (2) if viewed as a nonsuccessive
petition, the court found that it was not filed timely. The defendant appeals, arguing that
(1) the petition is not a successive petition and (2) the court erred in dismissing it at the
first stage on the basis of untimeliness. We reverse.
¶2 On November 1, 2007, the State filed a two-count information charging the
defendant with one count each of intentional homicide of an unborn child (720 ILCS 5/9-
1.2(a)(1) (West 2006)) and aggravated battery (720 ILCS 5/12-4(b)(11) (West 2006)).
The charges stemmed from the beating of the defendant's pregnant girlfriend, Krystal
Heggie. The baby was born alive, but died a few days later. On July 17, 2008, the State
filed an amended information charging the defendant with first degree murder in the
death of the baby, Malayna Heggie York, and adding a charge of aggravated battery
under an alternative theory (720 ILCS 5/12-4(a) (West 2006)).
¶3 On October 2, 2008, a jury found the defendant guilty of first degree murder and
aggravated battery. On October 29, the defendant filed a motion for a judgment
notwithstanding the verdict or, in the alternative, for a new trial. He raised numerous
issues. In relevant part, he argued that (1) trial counsel was operating under a per se
conflict of interest because he previously represented the victim, Krystal Heggie, on a
misdemeanor charge and (2) the amended information filed in July 2008 ran afoul of
compulsory joinder rules and violated the defendant's right to a speedy trial.
¶4 On November 17, 2008, the court held a sentencing hearing. The defendant's
attorney, Edwin Potter, informed the court that the parties had agreed to a sentencing
2 recommendation in exchange for "certain waivers and stipulations." The prosecutor
explained that the State would recommend sentences of 20 years on the murder charge
and 5 years on the aggravated battery charge, to be served consecutively. In exchange for
this recommendation, the defendant agreed to withdraw his pending posttrial motion and
waive his right to an appeal. Defense counsel Potter noted that the State also agreed to
have various court costs, fees, and fines that the defendant owed in both this case and
prior cases dismissed or declared uncollectible.
¶5 Before accepting the sentencing agreement, the court addressed the defendant.
The court first discussed with the defendant each of the 10 claims of error raised in his
posttrial motion. One of the 10 claims, as previously noted, was the defendant's
contention that Potter operated under a conflict of interest due to his previous
representation of Heggie. The court asked the defendant if he understood each of the
claims he was withdrawing. The defendant indicated that he was previously informed
that Potter had represented Heggie in the past. He further indicated that he understood
each of the claims raised in the motion, and he acknowledged that he was agreeing to
withdraw them.
¶6 The court then revisited the conflict of interest question, asking the defendant if he
wanted Potter to continue to represent him in light of the conflict. The defendant
indicated that he did want Potter to continue to represent him.
¶7 Finally, the court discussed the sentencing agreement itself with the defendant.
The court noted that the agreement called for the State to waive approximately $700 in
fees and fines. The defendant informed the court that he owed $2300. Asked if he
3 understood the recommended sentence under the agreement, the defendant told the court
that prior to the hearing, he was under the impression that the two sentences would be
served concurrently rather than consecutively. However, he indicated that he wanted to
accept the agreement anyway, explaining that "it was just a bad situation, and I just want
it to be over with." The court accepted the sentencing agreement and entered a written
order of conviction the same day.
¶8 On November 26, 2008, the defendant sent a letter to the court stating that he
wanted to withdraw the sentencing agreement "due to the fact that Edwin Potter should
not have represented [him] in the first place." On December 10, the defendant filed a pro
se motion for reduction of sentence, asking the court to order the two sentences to be
served concurrently rather than consecutively. On the same day, he filed a pro se motion
to vacate the sentencing agreement, arguing that he agreed to it after being advised to do
so by an attorney operating under a conflict of interest. The court appointed a new
attorney to represent the defendant and docketed the matter for further proceedings. On
January 30, 2009, however, the defendant withdrew the motions.
¶9 On November 2, 2011, the defendant filed his original pro se postconviction
petition, alleging ineffective assistance of counsel. The defendant asserted that his trial
counsel was under a conflict of interest due to his prior representation of the victim. The
defendant further alleged that counsel talked him into the sentencing agreement by telling
him that if he did not take the agreement, he would be sentenced to 40 years in prison,
and that if he appealed, that sentence would be upheld on appeal. The court appointed
counsel and docketed the petition for second-stage proceedings.
4 ¶ 10 On March 7, 2012, appointed counsel filed an amended postconviction petition on
the defendant's behalf. The amended petition incorporated the allegations of the pro se
petition. In addition, counsel argued that the defendant's waiver of Potter's conflict of
interest was not knowing and voluntary because the defendant was not adequately
admonished concerning the significance of the conflict. He further argued that Potter's
advice to the defendant was defective because he told the defendant he "would" be
sentenced to 40 years and that the sentence "would" be upheld on appeal instead of telling
the defendant merely that these results were possible or likely.
¶ 11 On March 29, 2012, the defendant asked the court to withdraw his petition. At an
April 25 status hearing, the court allowed the defendant to voluntarily withdraw his
petition.
¶ 12 On August 30, 2013, the defendant filed the pro se postconviction petition that is
at issue in this appeal. In it, he alleged that he waived his appeal rights while he was
represented by an attorney operating under a conflict of interest due to his prior
representation of the victim. The defendant alleged that his waiver of the conflict was not
timely because it was not addressed prior to trial. In an attached one-page affidavit, the
defendant alleged that he withdrew his previous petition because postconviction counsel
advised him that if he was successful, he might receive a greater sentence on remand. He
asked the court to "set aside the withdrawal" of the earlier petition. On September 15, the
defendant filed a pro se petition for habeas corpus. In it, he raised the same issues he
raised in the postconviction petition. In addition, he alleged that the July 2008 amended
information violated principles of compulsory joinder and speedy trial.
5 ¶ 13 On November 25 and 26, 2013, the court entered orders summarily dismissing
both petitions. We note that, although the defendant's notice of appeal includes both of
these orders, his arguments are focused on the order dismissing the postconviction
petition. As stated previously, the court provided two alternate grounds for dismissal in
that order. The court found that dismissal was warranted if the petition were considered a
successive petition because the defendant did not allege facts sufficient to satisfy the
cause-and-prejudice test (see 725 ILCS 5/122-1(f) (West 2012); People v. Pitsonbarger,
205 Ill. 2d 444, 460 (2002)). The court also found that dismissal was appropriate if the
petition were considered an initial petition because it was not timely filed within three
years of the defendant's conviction (see 725 ILCS 5/122-1(c) (West 2012)). This appeal
followed.
¶ 14 The defendant argues that his petition should have been reinstated and treated as
an original petition; he acknowledges, however, that the State may raise the issue of
timeliness at the second stage. The State counters, arguing that the petition must be
treated as a successive petition, which was properly denied by the trial court because the
defendant did not demonstrate cause and prejudice. The State acknowledges that, if the
petition is treated as an initial petition, dismissal at the first stage on the basis of
timeliness is not proper. See People v. Boclair, 202 Ill. 2d 89, 99 (2002). We review de
novo the court's first-stage dismissal of a postconviction petition. People v. English, 381
Ill. App. 3d 906, 908 (2008). In addition, our interpretation of the Post-Conviction
Hearing Act is de novo. People v. Little, 2012 IL App (5th) 100547, ¶ 14. For the
reasons that follow, we agree with the defendant.
6 ¶ 15 The Post-Conviction Hearing Act provides a three-step procedure by which a
prisoner may challenge his conviction or sentence on the basis of a constitutional
violation. Id. ¶ 12. At the first stage of postconviction proceedings, the court reviews the
petition to determine whether it is frivolous and patently without merit. The court
undertakes this review independently, without input from the State. Id. To survive first-
stage dismissal, the defendant need only assert the gist of a constitutional claim. If the
court does not dismiss the petition, it must docket the matter for further proceedings and
appoint counsel for an indigent defendant. Id.
¶ 16 At the second stage of postconviction proceedings, counsel may file an amended
petition on the defendant's behalf, and the State may file a motion to dismiss or an
answer. The petition will survive a second-stage motion to dismiss if the defendant has
made a "substantial showing of a constitutional violation." Id. If the petition is not
dismissed at the second stage, it moves to the third stage, an evidentiary hearing on the
defendant's claims. Id.
¶ 17 At any time during the proceedings, the defendant may request leave to voluntarily
withdraw his petition, as the defendant did here. 725 ILCS 5/122-5 (West 2012).
Although the Post-Conviction Hearing Act explicitly provides that a defendant may
voluntarily withdraw his petition, it does not provide any guidance concerning when or
how a voluntarily withdrawn petition may be reinstated. English, 381 Ill. App. 3d at 908.
¶ 18 Few Illinois courts have addressed this question. The first to do so was the Third
District in People v. English. There, the defendant filed a motion for voluntary dismissal
of his postconviction petition, which was granted by the court. Five months later, he filed
7 a new postconviction petition. Id. at 907. The circuit court dismissed the second
petition, finding that it was a successive petition and that the defendant failed to satisfy
the cause-and-prejudice test (see 725 ILCS 5/122-1(f) (West 2004); Pitsonbarger, 205 Ill.
2d at 460). English, 381 Ill. App. 3d at 907. The defendant subsequently filed a motion
to reinstate his first postconviction petition. This motion was filed one day less than one
year after the first petition was filed. The trial court denied the motion to reinstate, and
the defendant appealed. Id.
¶ 19 On appeal, the Third District noted that section 122-5 of the Post-Conviction
Hearing Act (725 ILCS 5/122-5 (West 2004)) "does not address how or when a trial court
may reinstate a voluntarily withdrawn postconviction petition." English, 381 Ill. App. 3d
at 908. The court also noted, however, that section 122-5 gives postconviction courts
discretion to enter orders allowing parties to amend petitions and file additional pleadings
" 'as shall be appropriate, just and reasonable[,] and as is generally provided in civil
cases.' " Id. (quoting 725 ILCS 5/122-5 (West 2004)). The court construed the phrase
"as is generally provided in civil cases" to mean that provisions of the Code of Civil
Procedure should be applied where the Post-Conviction Hearing Act "is silent concerning
a procedural matter." Id. at 909-10. The court pointed out that under the Code of Civil
Procedure, a plaintiff who voluntarily dismisses a pending action may refile that action
within one year after it is dismissed. Id. at 910 (citing 735 ILCS 5/13-217 (West 2004)).
The court held that this "savings clause" was applicable to the defendant's motion to
reinstate his postconviction petition, which was filed within one year after the defendant
voluntarily withdrew the petition. Id.
8 ¶ 20 Here, the defendant did not seek to reinstate his petition within one year of
withdrawing it, as the defendant did in English. The defendant acknowledges this
distinction, and he acknowledges that it is not without consequences. However, the
defendant urges this court to hold that failure to seek to reinstate a postconviction petition
within one year of withdrawing it should be treated the same way timeliness is treated
when a petition is filed after the applicable deadline in the first place. That is, he argues
that only at the second stage may the State raise his failure to seek reinstatement within
one year. This would allow counsel to amend his petition to include allegations
demonstrating that the delay is not due to the defendant's culpable negligence. See
Boclair, 202 Ill. 2d at 99.
¶ 21 The State, by contrast, argues that if a petition is not reinstated within one year
after being withdrawn, the savings clause does not apply, and the petition must be treated
as a successive petition. A successive petition is subject to procedural hurdles that are
not applicable to original petitions. Specifically, a defendant must obtain leave of the
court to file a successive petition. In order to do so, he must satisfy the cause-and-
prejudice test. Little, 2012 IL App (5th) 100547, ¶ 14.
¶ 22 In support of its position, the State cites the Second District's decision in People v.
Macri, 2011 IL App (2d) 100325. There, a defendant filed a postconviction petition,
which remained pending for more than seven years before the defendant voluntarily
withdrew his petition. Id. ¶ 3. The opinion does not indicate whether the petition was
docketed for second-stage proceedings during this time. Nearly six years after the
9 defendant withdrew his petition, he filed a motion to reinstate it along with a
supplemental postconviction petition. The trial court denied the motion to reinstate. Id.
¶ 23 On appeal, the defendant argued that, under English, the trial court was required to
automatically reinstate his petition and treat it as an original petition. Id. ¶ 9. In rejecting
this claim, the Second District emphasized the fact that the "defendant waited six years
after the petition was withdrawn" before seeking to reinstate it. Id. ¶ 8. The court
explained that this was not only beyond the one-year period for refiling provided by the
savings clause in the Code of Civil Procedure, it was also "well outside of the limitations
period delineated" in the Post-Conviction Hearing Act. Id. (citing 725 ILCS 5/122-1(c)
(West 2010)). The court thus concluded that the "defendant was not entitled to have his
petition automatically reinstated and treated as an original petition." (Emphasis added.)
Id. (citing English, 381 Ill. App. 3d at 910).
¶ 24 The Macri court went on to point out that the defendant there only argued that a
voluntarily withdrawn petition must automatically be reinstated; he did not argue that the
circuit court abused its discretion in refusing to reinstate the petition. Id. ¶ 9 (citing
People v. Wright, 149 Ill. 2d 36, 54 (1992)) (noting that section 122-5 gives courts
considerable discretion). The Macri court therefore did not consider whether the trial
court abused its discretion by refusing to reinstate the defendant's petition. Id. The court
concluded that because the trial court did not allow the defendant to reinstate his original
petition, the supplemental petition must be treated as a successive petition rather than an
original petition. Id.
10 ¶ 25 We are not persuaded by the State's argument. We first note this court is not
obliged to follow Macri because we are not obliged to follow the holdings of other
districts of the appellate court. People v. Pruitt, 239 Ill. App. 3d 200, 209 (1992). We
further note that, as just discussed, the Macri court limited its discussion to the sole issue
raised by the defendant in that case–that is, the Macri court considered only whether a
defendant was automatically entitled to have his petition reinstated at any time. See
Macri, 2011 IL App (2d) 100325, ¶ 9. The Macri court suggested in dicta that a
postconviction court may have the discretion to allow a defendant to reinstate a petition
more than a year after it is voluntarily withdrawn, and did not address the concerns the
defendant raises here about allowing timeliness to serve as a basis for first-stage
dismissal when a pro se defendant attempts to reinstate a voluntarily withdrawn petition.
As we will next explain, we believe the defendant's interpretation is more consistent with
section 122-5 and the Post-Conviction Hearing Act as a whole.
¶ 26 We reach this conclusion for two reasons. First, we believe that interpreting
section 122-5 in conjunction with the relevant provision of the Code of Civil Procedure
supports the defendant's position. Second, we believe that the interpretation urged by the
State is at odds with the provision allowing a defendant to voluntarily withdraw a
¶ 27 We first consider the pertinent statutory provisions. Section 122-5 of the Post-
Conviction Hearing Act allows a defendant to voluntarily withdraw his petition at any
time before the court enters a final judgment. It also gives postconviction courts the
discretion to enter orders allowing "amendment of the petition or any other pleading, or
11 as to pleading over, or filing further pleadings, or extending the time of filing any
pleading *** as shall be appropriate, just and reasonable[,] and as is generally provided in
civil cases." 725 ILCS 5/122-5 (West 2012). The voluntary withdrawal of a
postconviction petition is akin to the voluntary dismissal of a civil action under the Code
of Civil Procedure. See English, 381 Ill. App. 3d at 909. Section 13-217 of the Code of
Civil Procedure allows a plaintiff to refile a voluntarily dismissed action within one year
after the action is dismissed or within the original limitations period for filing the action.
See 735 ILCS 5/13-217 (West 1994). The limitations period under the Post-Conviction
Hearing Act in this case is three years from the date of conviction "unless the petitioner
alleges facts showing that the delay was not due to his or her culpable negligence."
(Emphasis added.) 725 ILCS 5/122-1(c) (West 2012). A logical reading of the two
provisions together leads us to conclude that a defendant seeking to reinstate or refile a
voluntarily withdrawn petition is subject to the same rule–that is, a defendant seeking to
reinstate a voluntarily withdrawn petition after more than one year must be given the
opportunity to demonstrate that the delay was not due to his culpable negligence.
¶ 28 The position urged by the State is at odds with this conclusion. It also renders
meaningless the provision allowing for a voluntary withdrawal, at least for many
defendants. This is because treating the one-year time limit in the savings clause as an
absolute bar to reinstating a petition would put many defendants in a worse position than
they would be in if they did not file a timely petition in the first place. As noted earlier,
first-stage dismissal on the grounds of timeliness is not permitted under the Post-
Conviction Hearing Act. See Boclair, 202 Ill. 2d at 99. Instead, untimeliness is
12 "considered as an affirmative defense [that] can be raised, waived, or forfeited, by the
State." Id. at 101 (citing People v. Wright, 189 Ill. 2d 1, 11-12 (1999)). This allows "a
dutiful prosecutor" to waive the State's objection to the procedural defect if the petition
appears to raise a meritorious claim. Id. at 101-02. Of course, it also allows a defendant
to have the assistance of counsel in alleging and presenting to the court any facts and
circumstances to show that the delay was not due to the defendant's culpable negligence.
¶ 29 Under the interpretation urged by the State, a defendant who voluntarily
withdraws a petition would not have these benefits. Instead, such a defendant would be
subject to the additional hurdles imposed on a defendant seeking to file a successive
petition. See Little, 2012 IL App (5th) 100547, ¶ 14. Successive petitions are disfavored
because the Post-Conviction Hearing Act contemplates the filing of only one petition. Id.
However, the Act is intended to give a defendant a complete opportunity to bring his
constitutional claims. People v. Free, 122 Ill. 2d 367, 376-77 (1988) (citing People v.
Logan, 72 Ill. 2d 358, 370 (1978)). In the instant case, the defendant has not had a
complete opportunity to present his case. We hold that he may not be precluded from
doing so on the basis of the timeliness of his request to reinstate his petition without
having the opportunity to demonstrate that the delay was not due to his culpable
negligence.
¶ 30 We find an additional reason to reverse the court's order dismissing the defendant's
petition. Although not raised by either party, section 122-5 explicitly grants
postconviction courts the discretion to extend "the time of filing any pleading other than
the original petition." 725 ILCS 5/122-5 (West 2012). Although he captioned his
13 pleading as a postconviction petition, the defendant expressly asked the court to reinstate
the previous petition (or, in the defendant's words, to "set aside the withdrawal" of that
petition). Thus, it is more properly viewed as a motion to reinstate. A motion to reinstate
is a pleading other than an original petition. Thus, section 122-5 gives postconviction
courts the discretion to extend the applicable one-year time limit.
¶ 31 Finally, we must address the State's contention that we may affirm the trial court's
decision on the alternate basis that the petition was frivolous and patently without merit.
We disagree. We first note that the court below already concluded that the petition was
not frivolous and patently without merit. Moreover, as this court has previously
explained, "a court is required to review a petition within 90 days to determine whether it
is frivolous and patently without merit." People v. Inman, 407 Ill. App. 3d 1156, 1162
(2011) (citing 725 ILCS 5/122-2.1 (West 2006)). If the court does not make this
determination and dismiss the petition within that time, "the court must docket the
petition for further proceedings." (Emphasis in the original.) Id. (citing 725 ILCS 5/122-
2.1(a)(2) (West 2006)).
¶ 32 For the foregoing reasons, we reverse the order dismissing the defendant's
postconviction petition. We remand for further proceedings consistent with this decision.
¶ 33 Reversed and remanded for further proceedings.
14 2016 IL App (5th) 130579
NO. 5-13-0579
IN THE
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Fayette County. ) v. ) No. 07-CF-153 ) MICHAEL E. YORK, ) Honorable ) James L. Roberts, Defendant-Appellant. ) Judge, presiding. __________________________________________________________________________
Opinion Filed: November 7, 2016 __________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Bruce D. Stewart, J., and Honorable Judy L. Cates, J., Concur __________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy for Defender, Alexander G. Muntges, Assistant Appellate Defender, Office Appellant of the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864 __________________________________________________________________________
Attorneys Hon. Joshua Morrison, State's Attorney, Fayette County Courthouse, for 221 South 7th Street, Vandalia, IL 62471, Patrick Delfino, Director, Appellee David J. Robinson, Deputy Director, Luke McNeill, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 725 South Second Street, Springfield, IL 62704 __________________________________________________________________________