People v. Bailey

2017 IL 121450

102 N.E.3d 114

The PEOPLE of the State of Illinois, Appellee,

v.Dennis L. BAILEY, Appellant.

Docket No. 121450

Supreme Court of Illinois.

Opinion filed October 5, 2017.

Rehearing denied March 19, 2018.

Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Defender, and Jessica Wynne Arizo, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Brian McLeish, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Defendant Dennis Bailey filed in the circuit court of Will County a pro se motion seeking leave to file a second postconviction petition under section 122-1(f) of the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1(f) (West 2014)). The State filed a written objection to the motion, and the circuit court held a hearing at which the State appeared and was permitted to argue against the motion and petition. Defendant was neither present at the hearing nor represented by counsel. At the close of the hearing, the circuit court denied defendant’s motion for leave to file a successive postconviction petition.

¶ 2 Defendant appealed, arguing that the State should not have been allowed to provide input to the court regarding his motion for leave to file. The appellate court rejected this argument and affirmed the denial of the motion. People v. Bailey , No. 3-14-0847 (2016) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). We granted defendant’s petition for leave to appeal.

¶ 3 BACKGROUND

¶ 4 In July 2004, defendant was charged with one count of residential burglary and one count of disarming a peace officer. The circuit court allowed defendant’s public defender to withdraw, and defendant proceeded pro se at his 2005 jury trial. Defendant was found guilty as charged and was sentenced to concurrent prison terms of 24 years on each of the two counts. On direct appeal, defendant’s sole claim was that his waiver of trial counsel had not been voluntary and, as a result, the trial court erred in permitting him to represent himself at trial. The appellate court affirmed defendant’s convictions and sentence (People v. Bailey , No. 3-06-0139 (2008) (unpublished order under Illinois Supreme Court Rule 23 )), and we denied his petition for leave to appeal ( People v. Bailey , No. 106964, 229 Ill.2d 672, 326 Ill.Dec. 872, 900 N.E.2d 1119 (Ill. Nov. 26, 2008) ).

¶ 5 In April 2009, defendant filed pro se his first petition for postconviction relief under section 122-1(a) of the Act ( 725 ILCS 5/122-1(a) (West 2014)). The trial court dismissed the petition on July 16, 2009, and defendant appealed. Appointed appellate counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), and on April 4, 2011, the appellate court granted counsel’s motion and affirmed the trial court’s dismissal of the postconviction petition. People v. Bailey , No. 3-09-0700 (2011) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 6 Defendant then filed in the circuit court of Will County a pro se motion for leave to file a second postconviction petition pursuant to section 122-1(f) of the Act ( 725 ILCS 5/122-1(f) (West 2014)). Defendant did not address cause and prejudice in the motion, as required by the Act. Rather, he set forth claims alleging actual innocence, newly discovered evidence, denial of due process, speedy trial violation, ineffective assistance of counsel (prior to withdrawal), and abuse of discretion by the trial court.

¶ 7 The State filed a written objection, arguing that defendant’s motion for leave to file a successive postconviction petition should be denied because all of the claims were either barred by res judicata or did not meet the cause and prejudice test because no facts were alleged to explain why the claims were not raised in defendant’s initial postconviction petition. In addition, the State argued that defendant alleged no facts that would support a finding of actual innocence. Defendant filed a response to the State’s objection, in which he attempted to explain the lack of evidentiary support for his motion by asserting that he expected a favorable ruling in a declaratory judgment suit he filed against the trial judge, which would provide the evidence necessary to support his claims.

¶ 8 On October 6, 2014, the circuit court held a hearing on defendant’s motion. Defendant was not present at the hearing, nor was he represented by counsel. A Will County assistant State’s Attorney appeared at the hearing and argued that defendant’s motion for leave to file should be dismissed because the claims raised in the successive petition could have been raised in defendant’s first postconviction petition and defendant failed to establish cause and prejudice for failing to do so. After noting defendant’s written reply to the State’s objections, the circuit court denied the motion and dismissed the petition.

¶ 9 Defendant appealed, raising as his only argument that the circuit court erred in permitting the State to participate at the cause and prejudice stage of the successive postconviction proceedings. The appellate court rejected this claim and affirmed the lower court’s denial of defendant’s motion in an unpublished order. People v. Bailey , No. 3-14-0847 (2016) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). In rejecting defendant’s claim, the appellate court relied on the majority holding in People v. Bailey , 2016 IL App (3d) 140207, 406 Ill.Dec. 296, 60 N.E.3d 198, which addressed the identical issue raised here. In that case, the majority, applying "the rule of law that parties are generally permitted to respond to motions filed by the opposing party," held that the proper inquiry was whether section 122-1(f) of the Act creates an exception prohibiting the State from filing a response to a defendant’s motion. Id. ¶ 20. Finding no such prohibition in the statute, the majority held that the State was permitted to offer input on whether the circuit court should allow the defendant’s motion, noting that the State’s input would "assist in bringing threshold deficiencies in these motions *** to the trial court’s attention." Id. ¶ 25.

¶ 10 Defendant filed a petition for leave to appeal in this court, which we granted on January 25, 2017. Ill. S. Ct. R. 315 (eff. Mar. 25, 2016).

¶ 11 ANALYSIS

¶ 12 The single issue before us is whether, under the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2014)), the denial of defendant’s motion for leave to file a successive postconviction petition must be reversed because the circuit court permitted the State to provide input on the merits of the motion and petition at the cause and prejudice stage. Defendant argues that the State improperly influenced the trial court’s decision by filing a written objection and by arguing against the motion at an ex parte hearing held by the court.

¶ 13 The denial of a defendant’s motion for leave to file a successive postconviction petition is reviewed de novo . People v. Wrice , 2012 IL 111860, ¶ 50, 357 Ill.Dec. 33, 962 N.E.2d 934. In addition, the parties agree that our review is de novo here because the issue before us is one of statutory construction, requiring us to determine the proper interpretation of section 122-1(f) of the Act, which governs successive postconviction petitions. See People v. Smith , 2014 IL 115946, ¶ 21, 387 Ill.Dec. 1, 21 N.E.3d 1172. When construing a statute, our primary objective is to ascertain and give effect to the legislature’s intent. People v. Whitney , 188 Ill. 2d 91, 97, 241 Ill.Dec. 770, 720 N.E.2d 225 (1999). When determining the meaning of a provision of a statute, the court should consider the statute in its entirety, including the subject addressed and the legislature’s apparent objective. People v. Davis , 199 Ill. 2d 130, 135, 262 Ill.Dec. 721, 766 N.E.2d 641 (2002).

¶ 14 Section 122-1(f) of the Act provides as follows:

"(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 2014).

¶ 15 The Act contemplates the filing of only one postconviction petition and provides in section 122-3 ( 725 ILCS 5/122-3 (West 2014) ) that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." Thus, section 122-1(f) represents an exception to this rule, permitting a successive petition, but only if the defendant first obtains permission from the court and demonstrates to the court cause and prejudice for not having raised the alleged errors in his or her initial postconviction petition. See Smith , 2014 IL 115946, ¶ 33, 387 Ill.Dec. 1, 21 N.E.3d 1172 ; People v. Evans , 2013 IL 113471 ¶ 18, 371 Ill.Dec. 168, 989 N.E.2d 1096 ; People v. Tidwell , 236 Ill. 2d 150, 157, 337 Ill.Dec. 877, 923 N.E.2d 728 (2010). The provision makes no mention of what role, if any, the State may play at this cause-and-prejudice stage of successive postconviction proceedings. In other words, the statute contains no express language either permitting or forbidding the State’s input when the circuit...