Court holds that pro se post-conviction petitioner must be given access to trial counsel’s case file

The appellant in People v. Dixon, 2019 IL App (1st) 160443 appealed the decision of the Circuit Court of Cook County to deny him access to his trial attorney’s file, after moving to represent himself, on the grounds that denial of access to those files rendered his waiver of post-conviction counsel invalid. The Appellate Court of Illinois First District ultimately reversed and remanded for new second-stage postconviction proceedings.

Following a conviction at jury trial for first degree murder and aggravated battery, appellant Charles Dixon, expressing dissatisfaction with his representation, filed motions to discharge his attorney. Id. at ¶ 8. The court granted his request to represent himself. Dixon subsequently filed a “Petition for Post-Conviction Relief with Memorandum of Law” (considered an addendum to the motion for a new trial), alleging ineffective assistance of counsel related to failures to present evidence at the hearing on the motion to suppress statements and support claims made about a witness’s integrity. Id. at ¶ 9-10. The trial court denied the motion for a new trial and sentenced Dixon to consecutive terms of life imprisonment for first degree murder and 30 years for aggravated battery. Id. at ¶ 11.

On direct appeal, the appellate court modified the sentences to run concurrently, but otherwise affirmed. Id. at ¶ 12. Dixon’s post-conviction petition contained seven allegations of ineffective assistance of counsel, which mirrored those of the pro se motion for a new trial. After nearly five years of delay following the appointment of counsel for post-conviction proceedings and an admonishment from the court that it was a “really bad decision,” Dixon chose to proceed pro se. Id. at ¶ 19.

Dixon requested access to trial counsel’s entire file, which was denied by the court for being outside the scope of discovery (following argument from the State that Dixon failed to establish good cause for the discovery). Id. at ¶ 22. Dixon was only granted access to a couple general progress reports. After a series of extensive delays caused by prison lockdowns, limited access to the law library, and misplacement of legal materials by DOC, Dixon unsuccessfully filed two motions for substitution of judge. Ultimately, the trial court dismissed Dixon’s post-conviction petition and denied reconsideration. Id. at ¶ 24. Dixon appealed.

Dixon argued on appeal that the “trial court erred when it granted Dixon’s motion to proceed pro se at the second stage but then handicapped him by refusing to allow access to the documents used by the attorney who previously represented him,” which he argues, renders his waiver of post-conviction counsel invalid. Id. at ¶ 26. Dixon argued in the alternative that the trial court’s rulings that the trial file constituted discovery and work product “were erroneous” and requested full access to his counsel’s trial file.

Dixon asked the court to remand for new second-stage proceedings under the Post-Conviction Hearing Act. The trial court offered two reasons for denying Dixon access to his trial counsel’s file: (1) that Dixon had failed to show anything other than the possibility that the file would assist in developing a post-conviction claim and, in its view, post-conviction discovery is limited to shoring up existing claims, and (2) the contents of the file constituted work product.

The appellate court found these arguments to be unpersuasive, holding that Dixon was entitled to the contents of the file. Id. at ¶ 28. In fact, the appellate court argued both that trial counsel’s file was not discovery, as the material did not require the production of new information, and even in the event that it was, the trial court’s reasoning was insufficient. Id. at ¶ 31. The court further explained that the trial court’s reasoning places petitioners in an “impossible dilemma” to use the evidence that they are requesting access to in order to demonstrate good cause, without being granted access to that evidence. Id. at ¶ 33.

The appellate court also disagreed with the trial court’s assertion that Dixon lacked a post-conviction claim, as the trial record had shown at least one instance of ineffective assistance of counsel that Dixon had planned to present prior to waiving counsel. On the work product argument, the appellate court found that the work product doctrine, which would prevent a party from accessing specific material (such as strategy notes), applies exclusively to preventing interference from opposing parties. Id. at ¶ 39. As such, the court ruled that access to any petitioner’s trial file cannot not be prevented via the work product doctrine, and even if it could, it would not do so in Dixon’s case. Id. at ¶ 40-41. The appellate court cited extensive support for these conclusions in Illinois courts, as well as courts around the United States and the Rules of Professional Conduct for attorneys. The appellate court concluded that both of the reasons invoked by the trial court to deny Dixon access to his trial file were erroneous and reversed the decision on that basis. Id. at ¶ 50.

The Appellate Court of Illinois First District reversed the decision of the Circuit Court of Cook County to dismiss appellant Dixon’s post-conviction petition and remanded for further second-stage proceedings, during which Dixon will be granted access to his trial counsel’s file as outlined in the analysis. Id. at ¶ 55.



Court affirmed dismissal of petition that alleged that trial counsel prevented him from testifying

The appellant in People v. Knapp, 2019 IL App (2d) 160162 appealed the decision of the Circuit Court of McHenry County to summarily dismiss his pro se petition alleging ineffective assistance of counsel on grounds that the record positively rebutted his claims. The Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of McHenry County and assessed statutory State’s Attorney Fees.

Following a conviction at trial for attempted first degree murder, two counts of aggravated battery and mob action, appellant Justin Knapp was sentenced to 16 years in Illinois Department of Corrections. Id. at ¶ 1. Eyewitness testimony presented at trial placed Knapp at the scene of the attempted murder and stabbing, positively identified him as a member of the Nortenos 14 street gang, identified the victim, Jorge Ativia, as a member of a rival gang, the Latin Kings, detailed threats of sexual assault and murder made to investigative police officers responding to the stabbing, and identified a missing knife from the kitchen of a home that Knapp had forced himself into. Id. at ¶ 5-22.

Knapp chose not to testify at his trial, and confirmed that he had discussed the decision not to do so at length with his defense counsel prior to jury instructions. Id. at ¶ 23. The jury found Knapp guilty on all counts. Id. at ¶ 25. Immediately thereafter, Knapp appealed his conviction and sentence. The Appellate Court of Illinois Second District affirmed his conviction and sentence on direct appeal in People v. Knapp, No. 2-09-0089 (2010). Id. at ¶ 26.

In November 2015, Knapp filed a pro se petition pursuant to the Post Conviction Hearing Act, alleging actual innocence, involuntary waiver of his right to testify, and ineffective assistance of appellate counsel. Id. at ¶ 28. In regard to Knapp’s involuntary waiver of his right to testify, the petition alleged that his decision was induced by “his attorney illegally withholding information critical to [his] decision thus rendering his decision involuntary.” Id. at ¶ 29. This claim included allegations that defense counsel had advised Knapp against testifying to a different account of events surrounding the fight that preceded the stabbing, the subject of that fight, and a witness’s gang affiliation. Id. at ¶ 29.

Knapp also alleged that his counsel instructed him during “in-trial conversations,” that his account of events was “unsupported by evidence.” Id. at ¶ 30. Knapp’s petition was dismissed by written order from the trial court on the grounds that his claim of actual innocence was insufficient and not supported by documents attached to the petition. The court found that the second claim was barred by res judicata and forfeiture, and the court found the claim of ineffective assistance of trial counsel to be frivolous and patently without merit. Id. at ¶ 30.

On appeal, Knapp only argued that the trial court erred with respect to his second claim– that trial counsel was ineffective for not allowing defendant to testify, citing People v. Palmer, 2017 IL App (4th) 150020, People v. Youngblood, 389 Ill. App. 3d 209, 217 (2009), and People v. Whiting, 365 Ill. App. 3d 402, 408 (2006). Id. at ¶ 32.

The appellate court’s review of the post-conviction petition was de novo, and the court considered exclusively whether the petition presented “the gist of a constitutional claim” in order to survive the first stage of review. Id. at ¶ 37. In order to prevail on a claim of ineffective assistance of counsel, counsel’s performance must be demonstrated to be “objectively unreasonable under prevailing professional norms and that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at ¶ 38. The court asserted that claims of ineffective assistance of counsel must “overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not incompetence.” Id. at ¶ 38.

The appellate court rejected Knapp’s argument that it could be inferred from the details provided that appellant “communicated a desire to testify to counsel both before and during trial” rather than expressly stating that he had informed trial counsel of his desire to testify. Id. at ¶ 39. As a result, the court concluded that the petition failed to establish “even the gist that trial counsel’s performance was deficient.” Id. at ¶ 39. The court added that advice not to testify is a matter of trial strategy that does not amount to ineffective assistance of counsel (unless counsel refuses to allow the defendant to testify, which had not been established by the record), and even if it did, it was clear from the record that trial counsel discussed “at great length” the decision not to testify, which would also be considered trial strategy. Id. at ¶ 39. The court cited Youngblood in support of this analysis. The court expounded further that even if it were to find trial counsel’s performance deficient, the petition failed to establish prejudice, as appellant had not indicated he would have denied participating in the attack had he been called to testify. Id. at ¶ 42.

As such, the court concluded that because a claim is without merit when it is rebutted by the record, appellant’s petition and its claim that trial counsel was ineffective for not allowing defendant to testify was without merit. Id. at ¶ 43. Moreover, the court’s conclusion indicated that appellant’s petition both failed to overcome the presumption that the actions of counsel were not the product of trial strategy and failed to establish even “the gist of a constitutional claim.”

The Appellate Court of Illinois Second District affirmed the Circuit Court of McHenry County’s order dismissing appellant’s post-conviction petition and granted the State’s request for $50 in costs for the appeal. Id. at ¶ 67.



First District reverses order denying successive petition raising actual innocence claim

The appellant in People v. Galvan, 2019 IL App (1st) 170150, appealed the decision of the Circuit Court of Cook County to dismiss his third-stage successive post-conviction petition on the grounds that the trial court misapplied the standard and made improper findings in regard to the petitioner’s actual innocence claims and failed to address several arguments related to Galvan’s denial of due process claims. The Appellate Court of Illinois First Judicial District reviewed and ultimately reversed the judgment of the trial court, granted appellant’s third-stage successive postconviction petition, and remanded.

Following conviction at a jury trial for aggravated arson and first-degree murder, appellant, John Galvan was sentenced to natural life in prison without parole. Id. at ¶ 4. Galvan was 18 years old at the outset of his jury trial. Galvan’s arrest, prosecution and subsequent conviction were the byproduct of eyewitness testimony from an alleged witness, Michael Almendarez, obtained after a 10-to-12 hour interrogation by detectives James Hanrahan and Victor Switski. Id. at ¶ 5-6. Almendarez’s testimony was the subject of a denied pre-trial motion to suppress by Galvan’s counsel, which alleged the confession was forced by detectives and materially false. Id. at ¶ 5.

At trial, Galvan testified that his confession, signed following his initial interview with Detectives James Hanrahan and Victor Switski, was coerced by Detective Switski, following threats of the “death penalty,” an instruction to blame one of his co-defendants, threats of physical assault, and a promise of release. Id. at ¶12. During closing arguments at trial, defense counsel argued that shortly before the fire, there was a “young woman in the street threatening to burn down [the] building.” Id. at ¶ 13. Galvan was found guilty of all counts by the jury. Id. at ¶ 14.

On direct appeal, appellant’s conviction was upheld by the appellate court. Id. at ¶ 16. Galvan’s subsequent post-conviction petition, which alleged that the eyewitnesses were high on the night of the fire and would not have been able to identify appellant, was dismissed by the circuit court and upheld on appeal. Id. at ¶ 16. Between 2001 and 2004, appellant filed a pro se post-conviction petition (in 2001) and three supplemental petitions (in March 2003, February 2004, and October 2004), which included claims of actual innocence based on a newly executed affidavit by Partida, stating that appellant was not present the night of the arson and murder. Id. at ¶ 17.

At the third-stage evidentiary hearing, Partida testified to the contents of the affidavit, provided his eyewitness account of the fire, and detailed the attempts by detectives to get him to incriminate individuals (Galvan and codefendants) who he had not seen at the location of the fire. Partida also testified to factual innacuracies and exclusions in the two reports produced following his interviews with detectives. Id. at ¶ 19-24. A witness by the name of Mary Jane Borys testified that Lisa Velez, a tenant of the building which burned down in the arson, was affiliated with the Latin Kings gang and had expressed her intent to burn down the building with the victims inside. Id. at ¶ 26. Borys testified to multiple interviews with detectives where she informed them of statements made by Velez. Id. at ¶ 28.

Galvan provided further testimony regarding his coerced confession, detailing threats of violence, actual physical violence and the detective’s statement that he would “shoot [him] himself” if he did not confess. Id. at ¶ 36. Galvan also testified to an interaction with Assistant State’s Attorney (ASA) Joel Leighton, who asked him to corroborate the confession and left the room when he would not. Following an additional alleged beating by Detective Switski, ASA Leighton returned to the room and Galvan confirmed the accuracy of the confession. Id. at ¶ 39.

Almendarez testified to similar treatment by Detectives Switski and Hanrahan. Id. at ¶ 42. Almendarez testified that “Detective Switzki’s threats and abuse resulted in him signing a statement implicating [Galvan] and [codefendant] because he believed he could go him if he did so.” Id. at ¶ 43. Multiple other witnesses testified, in great detail, to signing false confessions after being interrogated and physically abused (in similar fashion to Galvan’s alleged abuse) by Detective Switski. Id. at ¶ 44-52. Switski denied any recollection of the events pertaining to the testimony of Galvan and all other witnesses and ASA Leighton denied seeing injuries on Galvan or the codefendants. Id. at ¶ 53-54. A fire and explosion expert, Dr. Russell Ogle, testified that there was no evidence that the fire started at the porch, as stated in the police report of the arson, nor could the fire have been started by a cigarette. Dr. Ogle testified that the most likely place for the fire to have begun was the stairwell. Id. at ¶ 55.

The trial court found Partida’s testimony to be “untruthful and not credible” based on prior affidavits; found that the outcome of the case would not have been different if the jury had heard Partida’s testimony (preventing a finding of ineffective assistance of counsel); found that any testimony regarding Velez’s expressed intent to burn down the building was improper hearsay and was not “newly discovered evidence”; and, concluded that Galvan failed to meet the necessary burden of proof to entitle him to post-conviction relief. Id. at ¶ 56-58. The trial court observed that all witnesses had, at one point, been convicted of murder (despite several of these convictions being overturned on appeal). Id. at ¶ 59. Galvan’s post-conviction petition was subsequently denied and became the subject of this appeal. Id. at ¶ 60.

The First District noted that “at a third-stage evidentiary hearing, the trial court acts as fact finder, determining witness credibility and weight to be given particular testimony and evidence” and should not re-decide the petitioner’s guilt.  Id. at ¶ 65, 67. The appellate court’s responsibility at this stage is to determine whether the circuit court’s denial of a post-conviction petition following an evidentiary hearing is manifestly erroneous, which is defined as “error which is clearly evident, plain, and indisputable.” Id. at ¶ 65.

As such, in their analysis of the appeal, the appellate court outlined the relevant questions in determining whether the trial court’s denial was manifestly erroneous: “(1) whether any of the officers who interrogated petitioner may have participated in systematic and methodical interrogation abuse and (2) whether those officers’ credibility at petitioner’s suppression hearing or at trial might have been impeached as a result.” Id. at ¶ 68. The appellate court found that the credibility findings made by the trial court, listed as justification for their denial, were not relevant to the issue of whether Switski’s credibility at the suppression hearing might have been impeached. In fact, the court found that “those officers’ credibility at petitioner’s suppression hearing or at trial might have been impeached as a result.” Id. at ¶ 74. Further, the appellate court found that “without petitioner’s confession, the State’s case was nonexistent.” Id. at ¶ 74.

Additionally, the appellate court determined there were “several other bases for which we believe the trial court could have granted petitioner’s successive postconviction petition following the third-stage evidentiary hearing,” most compelling of which was the newly discovered evidence regarding Velez’s motive. Id. at ¶ 75. The court found many of Galvan’s additional claims for postconviction relief compelling. As a result, the appellate court found the trial court’s conclusion manifestly erroneous and reversed and remanded with directions that Galvan receive a new suppression hearing and, if necessary, a new trial. Id. at ¶ 79.

Court holds that “cause” and “prejudice” not met on proportionate penalties claim that does not arise out of Miller

In the People v. Hoover2019 IL App (2d) 170070, the Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of Stephenson County denying Hoover leave to file a successive petition under the Post-Conviction Hearing Act, on the grounds that the proposed petition did not satisfy the cause and prejudice prongs of section 122-1(f) of the Act.

Following a reneged-upon plea deal, confession and jury trial, appellant Michael Hoover was found guilty of first degree murder and armed robbery in July of 1994. Id. at ¶ 2-6. At sentencing, the court heard testimony from multiple women alleging that Hoover had harassed and made threats of violence (including murder) to them when they were as young as 14 years old; another woman testified to death threats made by Hoover to her landlord. Id. at ¶ 6. Another individual testified that he and Hoover had committed numerous burglaries and auto thefts between 1982 and 1989, three of which they were charged and convicted for. Id. at ¶ 7. A roommate of Hoover’s (at the time of the armed robbery and murder), Laura Jones, testified that Hoover sold marijuana and cocaine from their residence, abused her physically and psychologically, and made numerous death threats to her (both while residing with her and incarcerated). Id. at ¶ 8. Further, a police officer testified to Hoover’s possession and ownership of an illegally sawed-off shotgun found during a search of his storage locker in 1993. Id. at ¶ 9.

Hoover was sentenced to an extended term of life imprisonment for first degree murder, based on the exceptionally brutal or heinous conduct indicative of wanton cruelty. Hoover received an additional extended term of 50 years’ imprisonment for armed robbery. Id. at ¶ 11. The court held that no statutory factors in mitigation applied, as Hoover had not led a law-abiding life for any substantial period prior to the offenses. The court cited convictions in October 1987, November 1987, May 1988, July 1988, and October 1991 as support for its reasoning that he was “very likely to commit further crimes.” Id. at ¶ 12. The only non-statutory factor in mitigation that applied was Hoover’s testimony for the State at a codefendant’s trial. The court held that because of Hoover’s “almost nill” rehabilitative potential and extensive criminal history (twelve criminal convictions since the age of 17), a lengthy sentence was needed to deter others from committing similar crimes. Id. at ¶ 14.

On appeal, Hoover contended his life sentence for murder was excessive in light of his being only an accomplice and his testimony for the State. Hoover also contended that his armed robbery sentence was legally erroneous. The court refused to reduce the sentence for murder because of the gratuitous cruelty of the murder, Hoover’s role in planning and facilitating the crime, and the ample precedent for life sentences for accomplices in similar cases. The court reduced the armed robbery sentence to 30 years, but otherwise affirmed. Id. at ¶ 16. In 2008, Hoover unsuccessfully petitioned for post-conviction relief under the Act, claiming that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), which petition was summarily dismissed by the trial court and affirmed on appeal, as Apprendi does not apply retroactively to collateral proceedings. Id. at ¶ 17.

On November 30, 2016, Hoover moved under Section 122-1(f) of the Post-Conviction Hearing Act for leave to file a successive petition, claiming that the law allowing a life sentence for first-degree murder was unconstitutional as applied, under both the Eighth Amendment and Illinois’ Proportionate Penalties clause. Id. at ¶ 19. Hoover’s petition relied upon Miller v. Alabama, 567 U.S. 460 (2012), which held that life sentences for minors violated the Eighth Amendment. Hoover argued that although he was not a minor at the time of offense, he was a “young adult” and the principle of Miller should apply, consistent with the application of Miller in People v. House, 2015 IL App (1st) 110580. Id. at ¶ 19.

Hoover contended that the “cause” requirement of Section 122-1(f) had been satisfied because Miller and House were decided long after proceedings on the first petition concluded; Hoover further argued that he satisfied the “prejudice” requirement because the court would’ve been required to consider his youth and imposed a shorter sentence. Id. at ¶ 20. Both the motion for leave to file a successive petition and a motion to reconsider were denied by the trial court.

On appeal, Hoover abandoned his Eighth Amendment claim in the wake of the Illinois Supreme Court’s decision in People v. Harris, 2018 IL 121932, which held that Miller does not apply to anyone who was 18 years of age or older when they offended. Id. at ¶ 22. As a result, the appellate court’s review was limited to the proportionate penalties claim. The Proportionate Penalties clause requires all penalties to be determined according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. The court disagreed with Hoover’s contention that he’d satisfied the cause-and-prejudice test for his claims, citing their decision in People v. LaPointe, 2018 IL App (2d) 160903, which stated, among other things, that the court is not required to make specific findings about a defendant’s rehabilitative potential nor detail how it decided the appropriateness of a life sentence, as justification. Id. at ¶ 24-26. The proceedings and rulings in LaPointe closely mirror that of Hoover.

In the courts’ application of LaPointe, they held that Hoover’s claim failed the “cause” prong of Section 122-1(f), as the proportionate penalties claim could have been raised in the first petition under the Act, and the principle that a defendant’s youth is relevant to sentencing was well-established and was therefore not created by Miller. Id. at ¶ 37. Moreover, the court held that Hoover’s claim failed the “prejudice” prong because Hoover’s primary contention, that the trial court erred by failing to consider his youth, did not constitute a genuine claim of a constitutional deprivation, as set out in LaPointe. Further, the court noted that the claim itself is severely undercut by the record, as the court weighed Hoover’s youth, relative criminal history and “almost nill” rehabilitative potential at sentencing, and is not required to detail all of those considerations on the record when deciding a sentence. Id. at ¶ 39.

The court also ruled that Hoover’s claims could have been raised on direct appeal and were thus barred by forfeiture, as in LaPointe. Id. at ¶ 40. Finally, the court held that “it cannot be seriously contended that [Hoover’s] life sentence was wholly disproportionate to his offense, if indeed it was disproportionate at all.” Id. at ¶ 42. The court repeated their determination that Hoover’s role in planning and facilitating the murder was both extensive and crucial, and that the murder met the “exceptionally brutal or heinous” standard. As a result, the court held that not only was the sentence no shock to the moral sense of the community, as would be required to constitute a constitutional deprivation, it was not even an abuse of discretion. Id. at ¶ 42. Thus, the motion did not satisfy either the “cause” or “prejudice” prong of Section 122-1(f) of the Act.

The Appellate Court of Illinois Second District affirmed the judgement of the Circuit Court of Stephenson County. Id. at ¶ 44.

When State participates in successive petition determination, automatic reversal is only warranted if error is structural

The appellant in People v. Conway, 2019 IL App (2d) 170197, appealed the decision of the Circuit Court of Winnebago County denying leave to file a second petition for post-conviction relief under the Post-Conviction Hearing Act, on the grounds that the State improperly participated in the trial court’s determination regarding leave. The Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of Winnebago County.

Following a conviction at trial for armed robbery, appellant Erick D. Conway was sentenced to life imprisonment as a habitual criminal. Id. at ¶ 3. Conway’s conviction was affirmed by the Appellate Court of Illinois Second District upon direct appeal. However, shortly thereafter, Conway filed a petition under the Act contending that he received ineffective assistance of counsel on appeal because his appellate counsel had failed to argue that Conway was not brought to trial within 120 days, as required by the Code of Criminal Procedure. Id. at ¶ 3. The trial court granted a motion by the State to dismiss the petition (which had previously been amended with the assistance of counsel following a series of procedural missteps), which was later affirmed by the Appellate Court of Illinois Second District. Id at ¶ 3.

In October of 2016, appellant Conway moved for leave to file a successive post-conviction petition, arguing that under section 122-1(f) of Post-Conviction Hearing Act there was cause for his failure to bring a successive petition claim in his initial post-conviction petition, as he was unfit (at the time) due to mental illness. The petition noted that while in the Department of Corrections, appellant Conway was diagnosed with severe anxiety and mild schizophrenia. Id. at ¶ 4. The State’s response expressed opposition to appellant’s “raising the very same issue” in the initial petition yet “couching it in terms of how he believes he was unfit” during the initial proceedings. Further, the State argued that continuances granted to trial counsel were attributable to Conway (as Conway made no attempts to terminate his counsel), and thus were not in violation of Code of Criminal Procedure. Id at ¶ 5.

Moreover, the State contended that Conway’s alleged mental illness did not render him unfit. The trial court denied the motion for leave, holding that the issues raised “have been raised previously and previously litigated.” Id. at ¶ 5. The court added, with respect to Conway’s mental fitness, that there is not an equivalency between a mental disorder or illness and unfitness, and that Conway failed to demonstrate any evidence of his unfitness at trial or in the present. When asked about the court’s recollection of Conway’s fitness at trial, the court added, at that time, it had “no reservations whatsoever about [Conway’s] lucidity, fitness and so forth.” Id. at ¶ 6. Conway appealed.

The appellate court’s analysis was conducted via procedures set forth in the Post-Conviction Hearing Act that afford petitions one petition without leave of court, which 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.” Id. at ¶ 8. Cause is defined as “an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings.” Prejudice is defined as “demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trail that the resulting conviction or sentence violated due process.” Id. at ¶ 8.

The appellate court agreed with Conway that the State’s participation at the cause and prejudice stage was improper because it violated Supreme Court precedent set forth in People v. Bailey, 2017 IL 121450, that the State “should not be permitted to participate at the cause and prejudice stage of successive postconviction proceedings.” Id. at ¶ 9, 12. The appellate court evaluated competing interpretations for a remedy in Bailey and People v. Munson, 2018 IL App (3d) 150544, which was cited by Conway. Id. at ¶ 12. Bailey calls for the appellate court to undertake its own examination of cause and prejudice, rather than remand the case to the trial court for further proceeding. Munson held that Illinois Supreme Court Rule 615 does not give the appellate court supervisory authority to conduct its own examination of cause and prejudice, and must instead remand to the trial court, consistent with the Act. Id. at ¶ 12.

The appellate court found Munson and People v. Baller, 2018 IL App (3d) 160165  (a decision adhering to the holding in Munson) to be “unpersuasive,” as the court is not exercising its supervisory authority when considering entitlement to a successive petition, and is, rather, making considerations of judicial economy. Id. at ¶ 15. The appellate court viewed the Munson and Baller decisions as interpreting Bailey to conform to their own views of the appropriate remedy, rather than looking to Bailey to determine the proper remedy. Id. at ¶ 18.

As such, the appellate court held that the appropriate remedy be would to issue an automatic reversal pursuant to Bailey if the State’s participation at the cause and prejudice stage of a successive petition proceeding was considered to be “structural,” following the court’ review and consideration. Id. at ¶ 21. A structural error is defined by the Supreme Court as an error that “renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.” Id. at ¶ 21. Structural errors include “a complete denial of counsel, trial before a biased judge, racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction,” none of which are applicable to that of the State’s participation in Conway. Id. at ¶ 21.

After reviewing the successive petition filed by Conway, the court concluded that he had failed to satisfy the cause-and-prejudice test, because the court had already raised  the argument in this appeal from the initial post-conviction petition. Id. at ¶ 25. Moreover, the court added that “there can be no cause for failing to raise a claim in the initial proceeding when the claim was, in fact, raised in that proceeding.” Id. at ¶ 25. The court considered all other claims raised by appellant to be “meritless” and “not prejudicial.” Id. at ¶ 27.

The Appellate Court of Illinois Second District affirmed the judgment of the Circuit Court of Winnebago County and granted the State $50 in cost for the appeal. Id. at ¶ 29.