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.

 

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s