Successive post-conviction petitions must meet cause-and-prejudice test (People v. Wilson, 2014 IL App (1st) 113570)

People v. Wilson, 2014 IL App (1st) 113570 (September 12, 2014) Cook Co., 5th Div. Affirmed. The defendant in Wilson was convicted of first degree murder following a shooting. Wilson was subsequently sentenced to 60 years in prison. On May 28, 2009, defendant filed an initial pro se post-conviction petition claiming that trial counsel was ineffective for failing to file a notice of appeal. The Petition was supported by an affidavit from trial counsel admitting error. The trial court granted defendant’s post-conviction petition based on this single issue and allowed defendant to file a late notice of appeal. The conviction and sentence were affirmed on appeal.

Defendant filed a second pro se post-conviction petition on June 24, 2011. Wilson’s second post-conviction petition raised numerous claims of ineffective assistance of appellate counsel based on appellate counsel’s failure to raise various claims in defendant’s direct appeal. The trial court dismissed the second petition, finding that defendant’s second petition was a successive petition under the Act and failed to meet the “cause-and-prejudice” test necessary for obtaining leave to file a successive petition under the Act. Specifically, the circuit court found defendant failed to: (1) identify any objective factor which impeded his efforts to raise the claims in the earlier petition; and (2) demonstrate any prejudice inured from his failure to assert the claims earlier because “[h]ad they been presented in the initial petition, there is scant probability that petitioner would have prevailed.” Wilson at ¶ 27. Defendant appealed the trial court’s dismissal of the petition, arguing that the second post-conviction petition was not a “successive petition” because he only sought to reinstate his right to appeal, and that his second petition presented a gist of a constitutional claim such that advancement to second stage proceedings was required.

Generally, the Act contemplates the filing of only one petition. 725 ILCS 5/122-1(f) (West 2010). Successive petitions are disfavored and, therefore, to proceed on a successive petition a petitioner must first obtain leave of court by either asserting actual innocence or satisfying the cause-and-prejudice test. People v. Sutherland, 2013 IL App (1st) 113072, ¶ 16; 725 ILCS 5/122-1(f) (West 2010). To demonstrate 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 establish prejudice, a defendant must demonstrate “that the claim not raised *** so infected the trial that the resulting conviction or sentence violated due process.” Id. Wilson at ¶ 33.

Defendant relied on People v. Little, 2012 IL App (5th) 100547, ¶ 19, to support his proposition that where a defendant files an initial postconviction petition seeking only to reinstate the right to a direct appeal that was lost due to counsel’s ineffectiveness, a subsequent petition is not a successive petition under section 122-1(f) of the Act. Wilson at ¶ 34. The State contended that Little was not implicated in this case because the circuit court ruled on defendant’s petition within 90 days and complied with People v. Hodges, 234 Ill. 2d 1 (2009). Wilson at ¶ 35.

The appellate court agreed with the defendant that Little controlled under the facts in this case, and that because defendant’s initial petition only sought to restore his right to appeal, the second petition should have been treated as a first petition, and that, accordingly, defendant was not required to satisfy the procedural prerequisites for filing a successive petition in order for his claims to be considered on the merits.

However, the appellate court can affirm on any basis set forth in the record. People v. Quigley, 365 Ill. App. 3d 617, 619 (2006). Reviewing the claims set forth in defendant’s Petition, the appellate court agreed with the trial court that they were frivolous and patently without merit, such that first stage dismissal was still appropriate. In sum, even though the trial court erred by characterized defendant’s second petition as a successive petition, the trial court correctly dismissed the petition based on the merits, or lack thereof.

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