People v. Moore

236 N.E.3d 475

2023 IL App (4th) 210245

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Robbie MOORE, Defendant-Appellant.

NOS. 4-21-0245, 4-21-0260 cons.

Appellate Court of Illinois, Fourth District.

Filed March 21, 2023

Appeal from the Circuit Court of Vermilion County, Nos. 96CF264, 00CF246. Honorable Derek J. Girton, Judge Presiding.

James E. Chadd, Catherine K. Hart, and Susan Wilham, of State Appellate Defender’s Office, of Springfield, for appellant.

Jacqueline Lacy, State’s Attorney, of Danville (Patrick Delfino, David J. Robinson, and Luke McNeill, of State’s Attorneys Prosecutor’s Office, of counsel), for the People.

OPINION

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

¶ 1 Defendant, Robbie Moore, appeals from the trial court’s order denying him leave to file a successive postconviction petition. This court appointed the Office of the State Appellate Defender (OSAD) to represent defendant on appeal.

¶ 2 OSAD has moved to withdraw as counsel on appeal because, after reviewing the record, OSAD has determined that defendant’s appeal lacks arguable merit. For the following reasons, we grant OSAD’s motion and affirm the trial court’s judgment. We also order defendant to show cause within 30 days why sanctions should not be entered against him, pursuant to Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994), for filing a frivolous appeal.

¶ 3 I. BACKGROUND

¶ 4 In June 1996, in case No. 96-CF-264, the State charged defendant, Robbie Moore, with three counts of aggravated criminal sexual assault (counts I and II to T.C. and count III to J.G.) (720 ILCS 5/12-14(b)(1) (West 1994)) and one count of aggravated criminal sexual abuse (count IV to A.C.) (id. § 1246(d)). The trial court later granted the State leave to amend the aggravated criminal sexual assault charges (counts I to III) to three counts of predatory criminal sexual assault of a child. 720 ILCS 5/12-14.1 (West 1996).

¶ 5 In January 1997, the trial court conducted a bench trial and found defendant guilty of all charges. In April 1997, the court sentenced defendant to 20 years in prison on each of the three counts of predatory criminal sexual assault of a child and 7 years in prison for aggravated criminal sexual abuse, with these sentences to be served consecutively.

¶ 6 On direct appeal, the Illinois Supreme Court reversed defendant’s convictions for predatory criminal sexual assault of a child because, while defendant’s appeal was pending, the statute that created the offense of predatory criminal sexual assault of a child (Pub. Act 89-428 (eff. Dec. 13, 1995)) was declared void ab initio because it was passed in violation of the single-subject clause of the Illinois Constitution. People v. Tellez-Valencia, 188 Ill. 2d 523, 525-26, 243 Ill.Dec. 191, 723 N.E.2d 223, 224-25 (1999). Defendant’s conviction and seven-year sentence for aggravated criminal sexual abuse of A.C. remained in force.

¶ 7 In May 2000, in case No. 00-CF-246, the State charged defendant with two counts of aggravated criminal sexual assault to T.C. and one count of aggravated criminal sexual assault to J.G. Following a jury trial, defendant was convicted of all three offenses and was sentenced to 30 years in prison for each offense, to be served consecutively.

¶ 8 On direct appeal of these new convictions, defendant argued that (1) the State gave inadequate notice of its intent to use child victim statements, (2) his guilt was not proven beyond a reasonable doubt, and (3) his sentence was improperly increased on appeal. In 2002, this court affirmed defendant’s convictions but reduced the sentence on each count to 20 years, to be served consecutively. People v. Moore, 335 Ill. App. 3d 1214, 297 Ill.Dec. 215, 836 N.E.2d 946 (2002) (table) (unpublished order under Illinois Supreme Court Rule 23).

¶ 9 A. Previous Petitions

¶ 10 1. The Initial Petition for Postconviction Relief

¶ 11 In May 2003, defendant filed (in both case No. 96-CF-264 and case No. 00-CF-246) his initial petition for postconviction relief. In his petition, he asserted that (1) the trial court failed to apply the rule from People v. Maggette, 195 Ill. 2d 336, 254 Ill.Dec. 299, 747 N.E.2d 339 (2001), that neither a hand nor a finger is an object (for purposes of committing an act of sexual penetration), (2) the trial court violated his constitutional right to confront his accuser, (3) the State did not prove all the elements of the offense, (4) trial counsel was ineffective for failing to object to the prosecutor positioning himself between the victim and defendant while questioning the victim, (5) trial counsel was ineffective for failing to impeach the State’s witnesses, (6) trial counsel was ineffective for failing to ask the court to instruct the jury on the lesser-included offense of aggravated criminal sexual abuse, and (7) appellate counsel was ineffective for failing to raise all of these issues on direct appeal.

¶ 12 The trial court summarily dismissed the petition in case No. 96-CF-264 because no issues applied to that conviction, but it appointed counsel in case No. 00-CF-246. In September 2004, postconviction counsel filed an amended petition, alleging only that defendant was denied his right to view J.G. while he was testifying. The court denied this claim after a third-stage evidentiary hearing. OSAD was appointed to represent defendant on appeal and filed a motion to withdraw on the basis that there was no arguably meritorious issue on appeal.

¶ 13 In July 2006, this court affirmed the trial court’s judgment and allowed OSAD’s motion to withdraw. People v. Moore, 365 Ill. App. 3d 1127, 339 Ill.Dec. 804, 927 N.E.2d 345 (2006) (table) (unpublished order under Illinois Supreme Court Rule 23).

¶ 14 2. The First Motion for Leave To File a Successive Postconviction Petition

¶ 15 In December 2009, defendant filed (in both cases) a second postconviction pe- tition in which he asserted the following claims: (1) the charging instruments were void and unconstitutional, (2) the witness testimonies contained contradictions and perjury, (3) the State failed to prove an act of sexual penetration occurred, (4) in both cases, his trial counsel gave "damaging closing arguments," (5) in case No. 96-CF-264 the prosecutor and judge "chang[ed] the title of the charge during mid-proceedings," (6) the victims were paid $25 each to lie to the police, (7) the circuit judge presiding over the first postconviction petition lied when she said case No. 96-CF-264 was reversed in part and affirmed in part, and (8) postconviction counsel failed to present all of defendant’s claims when counsel filed the amended (first) postconviction petition.

¶ 16 In March 2010, the trial court dismissed the petition because defendant did not obtain leave of court to file a successive postconviction petition. Later in March, defendant filed a motion for leave to file the successive petition, which the court denied because defendant failed to allege cause or prejudice. In a written order, the trial court found that "Defendant has filed and continues to file a number of pleadings; all of which are frivolous and patently without merit," and "has clearly abused the process and continues to do so." The court notified the Illinois Department of Corrections (DOC) of the frivolous filing pursuant to section 3-6-3(d)(1) of the Unified Code of Corrections. 730 ILCS 5/3-6-3(d)(1) (West 2008).

¶ 17 3. The Petitions for Relief from Judgment

¶ 18 In September 2012, 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 2010)), raising 16 different claims, including attacks on the trial testimony, trial counsel’s performance, the prosecutor, the circuit court judges, and the constitutionality of the charges and proceedings.

¶ 19 Later that same month, defendant filed a preprinted form document titled "Petition for Habeas Corpus." In this petition, defendant alleged the same issues he had alleged in the section 2-1401 petition. That same day, defendant filed various other motions, titled "Motion of Request," "Motion for the Request of Appointment of Counsel," and "Motion to Request Leave in Order to File an Appeal." In these filings, defendant again repeated many of the allegations he had made in the section 2-1401 petition and the habeas corpus petition.

¶ 20 In November 2012, the trial court entered an order dismissing defendant’s September and October 2012 petitions and motions, finding that "no legal basis exists for the relief sought by the Defendant in any pleading pending before this court."

¶ 21 In February 2014, the appellate court vacated the dismissal and remanded for further proceedings because the State was never served with a copy of the petition. People v. Moore, No. 4-12-1034 (2014) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 22 In April 2014, defendant filed (in both cases) an amended petition for relief from judgment pursuant to section 2-1401. 735 ILCS 5/2-1401 (West 2014). The amended petition alleged the following: (1) the prosecutor, as a county employee, had no authority to represent the State of Illinois, (2) the trial judge and the prosecutor had a conflict of interest because they had previously sent defendant to jail, (3) the prosecutor used illicit drugs, (4) the trial judge was an alcoholic, (5) J.G. changed his story at trial and his testimony was implausible, (6) "the circuit court violated due process of law by changing title of charge in mid-proceeding," (7) T.C. lied, (8) the Illinois Supreme Court erred by reversing case No. 96-CF-264 without ordering defendant’s immediate release, (9) the trial judge violated habeas corpus when she removed defendant from the custody of DOC and placed him in the custody of the county sheriff, (10) the State violated double jeopardy when it recharged defendant using the same information, (11) the aggravated criminal sexual assault statute is unconstitutional...