NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 180678-U
Order filed December 16, 2020 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0678 v. ) Circuit No. 09-CF-1019 ) DENNIS WILLIAMS, ) Honorable ) John P. Vespa, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court. Presiding Justice Lytton and Justice Wright concurred in the judgment. _____________________________________________________________________________
ORDER
¶1 Held: The court improperly received input from the State in the proceedings on the defendant’s request for leave to file a successive postconviction petition, and the appropriate remedy is remand for new proceedings.
¶2 The defendant, Dennis Williams, appeals the Peoria County circuit court’s order denying
him leave to file a successive postconviction petition. The defendant argues (1) the court
erroneously allowed the State to participate in the proceedings on the defendant’s request for
leave to file a successive postconviction petition, and (2) appointed counsel failed to comply
with Rule 651(c) or provide a reasonable level of assistance. ¶3 I. BACKGROUND ¶4 Following a bench trial, the defendant was found guilty of aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(2) (West 2008)) and criminal sexual assault (id. § 12-13(a)(1)).
The defendant was sentenced to 30 years’ imprisonment for aggravated criminal sexual assault.
The court did not enter a sentence for criminal sexual assault. On direct appeal, we affirmed the
defendant’s conviction and sentence. People v. Williams, 2013 IL App (3d) 110522-U, ¶ 28. ¶5 The defendant filed a petition for relief from judgment pursuant to section 2-1401 of the
Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)) as a self-represented litigant. After
providing notice to the defendant, the circuit court recharacterized the pleading as a
postconviction petition and summarily dismissed it. On appeal, we affirmed the summary
dismissal of the defendant’s postconviction petition and awarded him seven additional days of
presentence incarceration credit. People v. Williams, No. 3-14-0808 (2017) (unpublished
summary order under Illinois Supreme Court Rule 23(c)(2)). ¶6 Without obtaining leave of court, the defendant filed a successive postconviction petition,
which is the subject of the instant appeal. The circuit court entered a written order stating that it
was mandated to advance the petition to the second stage of postconviction proceedings because
it had not ruled on the petition within 90 days. The court appointed counsel to assist the
defendant. The court noted that the petition the defendant had filed as self-represented litigant
and its attachments were “so disjointed that a complete review of [the] same and likely
amendment thereto will be needed from defense counsel.” *3 ¶7 Postconviction counsel moved to withdraw on the basis that the defendant’s petition was
a successive petition and was not properly before the court or filed until the court granted the
defendant leave to file it. Counsel asserted that the petition was not actually in second-stage
proceedings because the court had not explicitly granted the defendant leave to file the petition.
Counsel stated that the defendant was not entitled to the appointment of counsel until the court
granted leave. ¶8 A hearing was held on postconviction counsel’s motion to withdraw. The State agreed
that the successive postconviction petition had not technically been filed because the court had
not granted the defendant leave to file it. The court told the defendant it would grant leave to file
the successive petition if the defendant had a good reason for not raising the claims in the first
petition. The court then asked postconviction counsel and the State if the defendant alleged
anything in the second petition that occurred after the first petition was filed. Postconviction
counsel said that he was not completely certain, but he did not recall the defendant alleging any
events that had occurred after the first petition was filed. The assistant state’s attorney said that
there was nothing in the successive petition that could not have been raised in the initial petition
and that many of the claims in the successive petition were already addressed in the first petition.
The defendant said that he had raised newly discovered evidence—namely, photographs—that
he did not have at the time he filed his initial petition. He obtained these photographs from the
police department pursuant to a request under the Freedom of Information Act (5 ILCS 140/1
et seq. (West 2014)). The State said these photographs were submitted at trial, but the defendant
claimed they were not. The court took the matter under advisement. *4 ¶9 The court entered a written order allowing postconviction counsel to withdraw and
finding that the defendant failed to make the requisite showing of cause and prejudice to show
why he should be granted leave to file the successive petition. ¶ 10 II. ANALYSIS ¶ 11 A. State’s Participation ¶ 12 The defendant argues that the matter should be remanded for new proceedings on the
question of whether he should be granted leave to file his successive petition because the court
improperly sought input from the State in making its cause and prejudice determination. The
State concedes that its participation at the cause and prejudice stage was improper but argues that
this court should conduct its own cause and prejudice analysis rather than remanding the matter
for new proceedings in the circuit court. In People v. Bailey, 2017 IL 121450, ¶ 20, our supreme
court held that “it is premature and improper for the State to provide input to the court before the
court has granted a defendant’s motion for leave to file a successive petition.” The Bailey court
reasoned that the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014))
contemplated an independent determination by the circuit court. Bailey, 2017 IL 121450, ¶ 24.
Accordingly, we accept the State’s confession of error. ¶ 13 We now turn to the question of whether the matter should be remanded for new
proceedings concerning the defendant’s request for leave to file a successive postconviction
petition. In Bailey, the court did not remand the matter. Id. ¶ 42. Rather, the Bailey court made its
own, independent cause and prejudice determination in the interest of judicial economy. Id. In
People v. Lusby, 2020 IL 124046, ¶ 29 n.1, our supreme court clarified that the appellate court
may also take the approach of the Bailey court. Lusby overruled appellate decisions that have
held that the appellate court is precluded from adopting such an approach. Id. *5 ¶ 14 While Lusby allows us to conduct our own cause and prejudice analysis, it does not
mandate that we do so. As in People v. Smith, 2020 IL App (3d) 170666, ¶ 11, we find that the
more appropriate remedy in this case is to remand the matter to the circuit court for a new judge
to make an independent cause and prejudice determination without the State’s improper
participation. “This will ensure that the circuit court conducts a truly independent examination
***.” (Emphasis in original.) Id.; see also Bailey, 2017 IL 121450, ¶ 24 (holding that the Act
contemplates an independent determination by the circuit court). ¶ 15 Also, as in Smith, neither party has made any argument on appeal concerning whether the
defendant made the requisite showing of cause and prejudice. The only remedy requested by the
defendant is remand, and the State has refrained from making any argument on the matter.
Accordingly, as in Smith, we find that the more appropriate procedure is to remand the matter to
the circuit court. See Smith, 2020 IL App (3d) 170666, ¶ 12. ¶ 16 B. Performance of Postconviction Counsel ¶ 17 The defendant also argues that the matter should be remanded for further proceedings
because postconviction counsel failed to comply with Illinois Supreme Court Rule 651(c) (eff.
July 1, 2017) and failed to address the defendant’s pro se claims or the issue of obtaining leave
to file the successive petition in his motion to withdraw. The defendant contends that, although
the Act does not mandate the appointment of counsel at the leave to file stage, the circuit court
had discretion to appoint counsel. The defendant argues that once counsel was appointed,
counsel had a duty to comply with Rule 651(c). We need not reach this issue because we have
already held that remand for new proceedings is warranted on other grounds. ¶ 18 We note, however, that while the circuit court always has discretion to appoint counsel to
assist indigent prisoners (see Tedder v. Fairman, 92 Ill. 2d 216, 226-27 (1982)), the record in this
case does not indicate that the court appointed counsel in an exercise of its discretion. Rather, the
court incorrectly believed that the defendant’s successive petition was an initial postconviction
petition and that appointment of counsel was mandatory because more than 90 days had elapsed.
Also, the court did not appoint counsel to assist the defendant in making a showing of cause of
prejudice. Instead, the record shows that counsel was appointed for the express purpose of
assisting the defendant at the second stage of postconviction proceedings. On remand, while
appointment of counsel to assist the defendant at the leave to file stage is not mandated by the
Act, the circuit court nevertheless retains the discretion to make such an appointment. ¶ 19 III. CONCLUSION ¶ 20 The judgment of the circuit court of Peoria County denying the defendant leave to file his
successive postconviction petition is reversed. The matter is remanded to the circuit court with
directions that the court independently consider the defendant’s request for leave to file a
successive postconviction petition without receiving input from the State. The proceedings on
remand should occur before a new judge. The court may, in its discretion, appoint counsel to
assist the defendant at the cause and prejudice stage, but it is not required to do so. ¶ 21 Reversed and remanded with directions.