The appellant in People v. Handy, 2019 IL App (1^st) 170213 appealed the trial court’s decision denying him leave to file a successive post-conviction petition, arguing that he met the cause-and-prejudice test. The First District ultimately affirmed the decision of the circuit court.

Dante Handy was convicted of armed robbery, home invasion, residential burglary, aggravated battery of a senior citizen, kidnapping, aggravated criminal sexual assault, and possession of a stolen motor vehicle, for which he was sentenced to  four consecutive 30-year prison terms. Handy was 18 ½ years old when he committed the crimes. As a result of violations of the single subject rule under the sentencing code, the sentence was converted to a 60-year term of imprisonment, with eligibility for mandatory supervised release at 78 ½ years. Id. at ¶ 1-4.

At trial, Handy testified that he did not ever sexually assault the victim, did not know the co-defendants had planned a robbery, did not intend to kidnap anyone, did not have a gun, and someone other than Handy held a gun to the homeowner’s head. Id. at ¶ 13. Handy testified that he fled from the co-defendants and was warned to keep his mouth closed. Handy further testified that after being arrested, the detective who questioned him threatened him, shoved him back against the mirror in the interrogation room, and pulled his braids. Handy’s testimony conflicted with all evidence and previous testimony.

At sentencing, the victims spoke in aggravation and the State argued that the defendants lacked any rehabilitative potential and had slept, laughed or joked during the court proceedings as if the matter was no big deal. Id. at ¶17. Counsel argued that Handy was less culpable than the co-defendants because of his expressed reluctance, limited participation in the sexual assault, and stated intention to kill himself. Id. at ¶ 18.

On direct appeal, Handy argued that his sentence was excessive because the court was unduly influenced by the media attention and failed to consider his rehabilitative potential based on his individual circumstances, which included the absence of an extensive criminal record, beatings from gang members and expressed remorse. Id. at ¶ 20. The sentence was ultimately converted due to a violation of the single subject rule.

In his initial post-conviction petition, Handy argued that appellate counsel failed to argue that his sentence was disproportionate and excessive in light of his young age, lack of criminal history, and rehabilitative potential. Id. at ¶ 21. The appellate court affirmed. Eight years later, Handy moved the circuit court for leave to file a successive post-conviction petition, which argued that he was deprived of due process because the truth-in-sentencing law under which his sentence was imposed was an unconstitutional statutory scheme. The motion was denied. Id. at ¶ 22.

Five years following that decision, Handy moved the circuit court to file the successive post-conviction petition at issue in this appeal. Handy’s pro se petition argued that his 60-year prison sentence was unconstitutional as applied to him under the Eighth Amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. Id. at ¶ 23. Handy argued the sentence was a de facto life sentence without the possibility of parole and that the trial court failed to consider the special circumstances of his youth.

As to the “cause and prejudice test” to obtain leave to file his petition, he argued that (1) the law concerning the imposition of lengthy sentences on juveniles changed substantially after his 2003 post-conviction petition as a result of the recent decisions of Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016), Miller v. Alabama, 567 U.S. 460 (2012), Graham v. Florida, 560 U.S. 48 (2010), and People v. Davis, 2014 IL 115595, and (2) there was a reasonable probability that he would have received a shorter sentence if the trial court had correctly understood and applied the Eighth Amendment of the United States Constitution at his sentencing hearing. Id. at ¶ 23. The court denied leave to file a successive petition. This appeal followed.

The denial of Handy’s motion to file for leave to file a successive post-conviction petition was reviewed de novo. The court noted that to meet the cause-and-prejudice requirements “a defendant seeking leave to file a successive petition must submit enough in the way of pleadings and documentation to allow a circuit court to make an independent determination on the legal question of whether adequate facts have been alleged for a prima facie showing of cause and prejudice.” Id. at ¶ 28. Further, the court noted, leave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings. Id. at ¶ 30.

As to cause-and-prejudice, Handy argued that he made the requisite showings because (1) the new constitutional rule of Miller applies retroactively to his sentence, and (2) a de facto life sentence for a youth in any case other than homicide is categorically barred under Graham. Id. at ¶ 31. Handy acknowledged that at the time of the offense, at 18 ½ years old, he was not technically a juvenile, but he nevertheless argued that Eighth Amendment protections afforded to juveniles under Miller should be extended to him. Id. at ¶ 37.

The Illinois Supreme Court drew a line at the age of 18, meaning that Miller protections do not extend to anyone who was 18 years old or older at the time of offense. Thus, the Handy’s Eighth Amendment challenge was meritless. Id. at ¶ 37. The court also refused to extend Miller principles under the proportionate penalties’ clause to appellant, as the special circumstances that had authorized such an extension in House were not present in this matter. Id. at ¶ 30.

Ultimately, while the court “recognize[d] that [appellant] is serving a harsh sentence” it concluded that he had not shown prejudice and that the trial court properly denied him leave to file his successive post-conviction petition. Id. at ¶ 42. The Appellate Court of Illinois First District affirmed the decision of the Circuit Court of Cook County.

The appellant in People v. Ames, 2019 IL App (4^th) 170569 appealed the trial court’s order denying’s his second motion for leave to file a successive post-conviction petitio on the grounds that the circuit court erred by allowing the State to respond to the motion. Ultimately, the Appellate Court of Illinois Fourth District affirmed the decision of the Circuit Court of Sangamon County.

Ames was convicted of one count of home invasion and two counts of aggravated criminal sexual assault and sentenced to consecutive terms of 28 years of imprisonment for home invasion and 6 years each for aggravated criminal sexual assault. Id. at ¶ 3. On direct appeal, Ames alleged that: (1) evidence of another crime deprived him of a fair trial and (2) trial counsel rendered ineffective assistance by failing to object to prior inconsistent statements made by the victim. The Fourth District affirmed on direct appeal. Immediately following that decision, Ames unsuccessfully petitioned the supreme court for leave to appeal. Id. at ¶ 4.

In September 2005, Ames filed a pro se petition for post-conviction relief, raising numerous ineffective assistance of counsel claims related to both trial and appellate counsel’s performance, including trial counsel’s alleged failure to move for expert analysis of DNA and trial counsel’s refusal to allow Ames to testify at trial. Id. at ¶ 5. After advancing to the second stage of post-conviction proceedings, the circuit court granted the State’s motion to dismiss. On appeal, the appellate court affirmed the dismissal. Again, Ames unsuccessfully petitioned the supreme court for leave to appeal. Id. at ¶ 5.

In September 2012, Ames filed his first motion for leave to file a successive postconviction petition, which was subsequently denied by the circuit court. The circuit court permitted Ames to file an amended motion, which he did in January 2013, asserting, inter alia, that his aggravated criminal sexual assault sentences violated the proportionate penalty clause. Id. at ¶ 6. In May of 2013, following a hearing, the circuit court denied the motion; this denial was affirmed by the appellate court on appeal. Id. at ¶ 6.

In April 2016, Ames filed a second motion for leave to file a successive post-conviction petition. In the months following, the State filed a response asserting that the motion should be denied, which prompted Ames to file a supplement to the original motion. One week following the filing of the supplement to Ames’ motion, a hearing was held where the State was permitted to make arguments.

In December of 2016, Ames’ motion was denied by the court on the grounds Ames failed to establish cause for failing to raise the issues contained in the second motion in his initial post-conviction petition and failing to file an affidavit in support of his claims. Id. at ¶ 7. In July of 2017, a hearing to reconsider the motion was held, resulting in the motion being denied once again. This appeal followed.

The Post-Conviction Hearing Act provides that in order to obtain leave to file a successive post-conviction petition, a petitioner must demonstrate cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice stemming from that failure. Id. at ¶ 12-13. As such, the court considered whether or not appellant Ames made a prima facie showing of cause and prejudice in determining whether or not Ames should be granted leave to file the successive postconviction petition. Id. at ¶ 13.

The appellate court disagreed with assertions made by the State that their involvement in the “preliminary screening” process of cause and prejudice in the successive petition hearing was minimal and proper, holding, consistent with previous rulings by the Illinois Supreme Court in People v. Bailey, 2017 IL 121450, that the State should not have been allowed to participate in any fashion. Id. at ¶ 14. The court’s focus thus became what relief should be afforded to Ames. Namely, whether or not the appellate court had the authority to affirm or deny on any basis found in the record or was required to remand for new proceedings.

After an extensive review of Bailey and subsequent appellate court cases, the appellate court agreed with a ruling in People v. Conway, 2019 IL App (2d) 170196, which held that the appellate court may choose for the sake of judicial economy to review a circuit court’s denial of a motion for leave to file a successive post-conviction petition when the State has been involved. Id. at ¶ 23.

The appellate court held that its review was “more appropriate than remanding the cause to the circuit court.” Id. at ¶ 23. To that end, the appellate court determined that Ames had failed to make a prima facie showing of the cause element for raising conflicts in testimony and evidence that were in the record at the time of his initial post-conviction petition, citing inapplicable Supreme Court cases as reason for delay in bringing his claim, and raising issues regarding DNA testing that had previously been raised. Id. at ¶ 24.

As a result, the Appellate Court of Illinois Fourth District affirmed the decision of the Circuit Court of Sangamon County. Id. at ¶ 26.

The appellant in People v. Peacock, 2019 IL App (1^st) 170308 appealed the trial court’s decision denying leave to file his successive post-conviction petition, on the grounds that his sentence constituted a de facto life sentence and violated the eighth amendment of the United States Constitution and the proportionate penalties clause of the Illinois Constitution. The Appellate Court of Illinois First Judicial District ultimately reversed and remanded the decision of the Circuit Court of Cook County for further proceedings.

Appellant Taki Peacock is currently service concurrent respective sentences of 80 years, 30 years, 30 years, and 30 years of imprisonment for convictions related to the 1995 first-degree murder, aggravated kidnapping, aggravated vehicular hijacking, and armed robbery of his victim, Rufus Taylor. At the time of offense, Peacock was 17 years old. Id. at ¶ 1.

On September 12, 2016, appellant filed a successive postconviction petition, in which he challenged the constitutionality of his 80-year sentence, arguing that it was an unconstitutional de facto life sentence pursuant to Miller v. Alabama, 567 U.S. 460 (2012). Appellant was denied leave by the circuit court to file his petition on October 12, 2016, ruling that the petition was untimely, and appellant had failed to file a motion for leave to file the petition. Id. at ¶ 2. This appeal followed.

On appeal, Peacock argued that he should have been permitted to file his petition because the 80-year sentence imposed on his conviction as a juvenile constitutes a de facto life sentence and thus violates the eighth amendment of the US Constitution and the proportionate penalties clause of the Illinois Constitution.  On appeal, Peacock acknowledged that he may qualify for day-to-day credit, and, accordingly, will be required to serve at least 40 years (50%) of his sentence. Peacock argued that his de facto life sentence still triggers the protections of Miller and requires a sentencing court to consider his youth and attendant characteristics in sentencing. Id. at ¶ 3. Peacock argued that the circuit court erred by not doing so and, as a result, thecase should be remanded for a new sentencing hearing.

In response, the State argued that leave was properly denied, and appellant’s sentence does not constitute a de facto life sentence because he was only “likely [to] serve 40 years.” The State points to appellant’s IDOC projected discharge date of August 31, 2035, exactly 40 years from the date he went into custody, as evidence of this fact. Id. at ¶ 4.

This appeal had previously been stayed pending an Illinois Supreme Court decision in People v. Buffer, 2019 IL 122327. Id. at ¶ 5. The Supreme Court has since decided Buffer, allowing for the stay on this case to be lifted.

In Buffer, the Supreme Court held that “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.” However, any sentence in excess of 40 years does. Id. at ¶ 11. This determination was made in accordance with previous holdings from Miller, which stated that in order to prevail in similar claims, “a defendant sentenced for an offense committed while a juvenile must show that (1) the defendant was subject to a life sentence, mandatory or discretionary, natural or de facto, and (2) the sentencing court failed to consider youth and its attendant characteristics in imposing the sentence.” Id. at ¶ 7. Following the decision in Buffer, both parties in this appeal were permitted to file supplemental briefs to address the impact of the ruling.

In his brief, Peacock argued that the ruling in Buffer supports his previously stated arguments regarding his sentence. Peacock acknowledged that while there is some confusion regarding explicit 40 year sentences (namely whether or not a sentence of exactly 40 years can be considered a de facto life sentence or not), his sentence should be considered in excess of 40 years because it is not guaranteed that he will serve only 40 years of his sentence, as his sentence is “entirely dependent upon the condition that he will not forfeit even one day one day of good conduct credit.” Id. at ¶ 14.

In its brief, the State contended that appellant’s sentence, having recently had his projected release date shortened by 15 days to August 16, 2035, is now only “39 years, 11 months and 16 days in prison,” which under Buffer cannot be constitute a de facto life sentence. Id. at ¶ 15.

As a result of the Supreme Court’s decision in Buffer, however, the Appellate Court held that Peacock’s 80-year sentence in this case did constitute a de facto life sentence. Id. at ¶ 17. The Court expanded that they need not make a determination regarding de facto life sentences on the dividing line of 40 years (the State’s argument) because the sentence imposed was an 80-year sentence with the “mere possibility of release after 40 years,” not a 40-year sentence. Id. at ¶ 19. The Court also agreed with Peacock’s argument that he’s not guaranteed receipt of day-for-day credit.

The Appellate Court also concluded that the trial court erred in failing to consider Peacock’s youth and his attendant characteristics in imposing his sentence, despite the State’s assertions to the contrary. Id. at ¶ 21. The court stated, in accordance with the Supreme Court, that the attendant characteristics that must be considered at sentencing in order to justify a de facto life sentence are “the juvenile defendant’s chronological age at the time of the offense and any evidence of his particular immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile defendant’s family and home environment; (3) the juvenile defendant’s degree of participation in the homicide and any evidence of familial or peer pressures that may have affected him; (4) the juvenile defendant’s incompetence, including his inability to deal with police officers or prosecutors and his incapacity to assist his own attorneys; and (5) the juvenile defendant’s prospects for rehabilitation.” Id. at ¶ 22. The Appellate Court held that the trial court’s mere awareness of Peacock’s age and consideration of the PSI was not “the equivalent to a full consideration of those special characteristics” and cannot be considered evidence of such. Id. at ¶ 23-24.

Ultimately, the appellate court held that Peacock’s sentence violated the eighth amendment, vacated the sentence as unconstitutional, reversed the decision of the Circuit Court of Cook County, and remanded for a new sentencing hearing. Id. at ¶ 24-26.

The appellant in People v. Parker, 2019 IL App (5^th) 150192 appealed the decision of the Circuit Court of Washington County denying his motion for leave to file successive post-conviction petition.

Leonard Parker was charged with four counts of first degree murder based on a theory of accountability related to the stabbing of a victim by a co-defendant, during the course of a robbery and residential burglary in September of 2000. Parker was 16 years old at the time of arrest. Id. at ¶ 2. Shortly thereafter, Parker entered into a negotiated plea agreement in which he pled guilty to one count of first-degree murder in exchange for the dismissal of the other three charges and a sentence not to exceed 50 years imprisonment. Parker was sentenced to 35 years imprisonment and ordered to pay a fine of $10,000 at his December 2000 sentencing hearing. Id. at ¶ 4.

In January of 2001, Parker filed a motion for leave to withdraw his guilty plea, arguing that he entered his guilty plea without sufficient understanding and contemplation of the serious nature of the consequences, was under pressure from his parents, and had insufficient discussions with his counsel. This motion was accompanied by a motion to reconsider the sentence, arguing that his sentence was excessive. Parker later withdrew the motion after being admonished that moving forward would result in a criminal trial for all four counts of first-degree murder. Id. at ¶ 5. The court denied the motion to reconsidering his sentence, noting that the withdrawal of his motion to withdraw his guilty plea forbid him from challenging his sentence. Id. at ¶ 6.

In 2010, Parker filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel based on: newly discovered evidence that police had ignored his parents’ request not to question him until they were present; that his counsel did not inquire as to whether he was questioned outside his parents’ presence; that he was coerced into entering a guilty plea by his counsel and parents (where his plea was based on a misinterpretation of the sentencing range); and that he was coerced by counsel to withdraw his motion to withdraw his guilty plea. Id. at ¶ 7. The petition advanced to second stage proceedings, where the State successfully moved to dismiss the petition based on the fact that it was filed beyond the time allowed under the Act. The dismissal was affirmed upon appeal. Id. at ¶ 8.

In 2015, Parker filed a pro se motion for leave to file a successive petition for post-conviction relief, which argued that his sentence amounted to a de facto life sentence in violation of the eighth amendment of the United States Constitution, citing Miller v. Alabama, 567 U.S. 460 (2012). Id. at ¶ 9. The trial court denied the motion, challenging Parker’s assertion that 35 years amounted to a de facto life sentence and argued that Miller only applied to mandatory life sentences. This appeal followed.

In its analysis of Miller, the Appellate Court noted that in the period between filing Parker’s appeal and their review of the case, the Illinois Supreme Court had extended the holding of Miller in People v. Holman, 2017 IL 120655, which established “that life sentences for juvenile defendants, whether mandatory or discretionary, were disproportionate and violated the eighth amendment unless the trial court considered the offender’s youth and its attendant circumstances.” Id. at ¶ 13.

The Court also noted that in the subsequent cases of Reyes and Buffer, the Illinois Supreme Court held that “sentencing a juvenile offender to a mandatory term of years that was the functional equivalent of life without the possibility of parole (de facto life sentence) constituted cruel and unusual punishment in violation of the eighth amendment” and “a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment because it provides some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at ¶ 14-15.

The appellate court held that Parker demonstrated cause because “Reyes and Buffer had not been decided when he filed his initial post-conviction petition and, thus, was not available to” him at the time of filing. Moreover, the Court ruled that although his sentence was below the line drawn in Buffer and is not a de facto life sentence, Parker still demonstrated prejudice, in that he showed a reasonable probability that he would have achieved a better result if the trial court had correctly applied the constitutional limitations of juvenile sentences (considering that Buffer applies retroactively). Id. at ¶ 18.

Ultimately, the appellate court held that retroactive application of Buffer constitutes cause and prejudice for purposes of being granted leave to file a successive post-conviction petition, reversed the decision of the Circuit Court of Washington County denying Parker’s motion for leave, and remanded for further proceedings. Id. at ¶ 18.

In the People v. Hoover, 2019 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.

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.

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.