Monthly Archives: July 2018

Remand necessary when State offers input on motion for leave to file successive petition

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The petitioner in People v. Baller, 2018 IL App (3d) 160165 filed a pro se motion for leave to file successive post-conviction petition. When a petitioner is filing a second or subsequent post-conviction petition, he must be granted permission, or leave, from the trial court in order to do so. In order to be granted leave to file a successive petition, the petitioner must allege actual innocence or satisfy the “cause and prejudice” test set forth in the Act. The “cause and prejudice” test is essentially an explanation why the petitioner did not bring the claim in his previously filed petition.

Under the Act, the trial court is to consider the motion for leave without input from the State. Here, the State filed a written objection to Baller’s motion for leave prior to the trial court deciding it. The court, referencing the State’s written objection, denied Baller’s motion for leave. Baller appealed.

The State conceded on appeal that it was error for the trial court to have considered the State’s input before ruling on the motion. However, it argued that remand was unnecessary because Baller did not sufficiently set forth in his motion for leave why his claim satisfied the cause and prejudice test.

Generally, the appellate court can affirm a lower court’s decision for any reason apparent in the record. In other words, the appellate court can come up with its own reason that the motion for leave should have been dismissed, even if it was not the same reason that the trial court used. The State argued on appeal that remand was unnecessary because Baller did not meet the cause and prejudice as matter of law, even if the court had considered the State’s input. Therefore, the argument went, because the motion was deficient, the appellate court could affirm the trial court’s denial of the motion because it would have been a reason apparent from the record.

However, the majority held that “the procedural posture of the instant case creates an exception to the general principle that an appellate court may affirm on any basis found in the record.” Id. at ¶ 16. The majority determined that “The only way to honor these holdings [that motions for leave must be decided without input from the State] is to reset the scales of justice and remand the matter to the trial court for an independent evaluation of defendant’s motion by expressly ignoring the State’s input as expressed both in this court and the trial court.” Id.  

Trial court improperly dismissed 2-1401 petition by not giving defendant time to respond

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In People v. Rucker, 2018 IL App (2d) 150855, the defendant filed a pro se petition for relief from judgment (known as a 2-1401 petition). The State filed a motion to dismiss. Fourteen days later, the court granted the State’s motion to dismiss without the defendant being present. The defendant filed a pro se motion to reconsider, which was denied also without him being present. Rucker appealed.

The Second District reversed and remanded the trial court’s order granting the State’s motion to dismiss on grounds that Rucker was denied due process when the trial court granted the State’s motion to dismiss without giving Rucker an opportunity to respond to the State’s motion. The Rucker court reasoned that “Defendant was deprived of the opportunity to respond to the State’s motion before the trial court initially ruled on it. Further, when defendant had the opportunity to respond via his motion to reconsider, he had the burden of persuasion, whereas, if he had been given the opportunity to respond before the court’s initial ruling, the burden would have been on the State to establish a basis for dismissal.” Id. at ¶ 29. The trial court’s order was then vacated and remanded.

Post-conviction counsel’s motion to withdraw was insufficient when it didn’t address all claims in pro se petition

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The Second District determined in People v. Moore, 2018 IL App (2d) 170120 (June 21, 2018) that post-conviction counsel’s motion to withdraw was improperly granted because it did not address all claims in the petitioner’s pro se petition. The defendant in Moore filed a pro se post-conviction petition that exceeded 500 pages. The trial court advanced the petition to the second stage, and post-conviction counsel was appointed.

Post-Conviction counsel is permitted to file a motion to withdraw pursuant to People v. Greer, 212 Ill. 2d 192 (Ill. 2004) if, after reviewing the pro se petition, post-conviction counsel determines that all claims contained in the pro se petition are frivolous. Post-conviction counsel is required to explain in his or her motion to withdraw why every claim in the pro se petition is frivolous.

Moore’s post-conviction counsel filed a Greer motion in this case, and the the court granted the motion after a brief hearing. The State then moved to dismiss the petition, and the State’s motion was granted.

Moore argued on appeal, among other things, that the Greer motion should not have been granted because the Greer motion did not address all claims in the petitioner’s 500-plus-page pro se petition. The appellate court agreed, indicating that post-conviction counsel does not execute his duties under Supreme Court Rule 651(c) when he to she fails to address all claims in the pro se petition in the Greer motion. The case was remanded for 651(c) compliance and the appointment of new counsel.