Appellate court reverses trial court’s denial of successive petition where defendant shows that trial counsel did not communicate plea offer to him

The appellant in People v. Ryburn, 2019 ILL App (4th) 170779, appealed the trial court’s decision dismissing his successive post-conviction petition at the second stage of proceedings. The Fourth District ultimately reversed the dismissal of the petition and remanded the case for further proceedings.

Ryburn was originally charged with four counts of aggravated criminal sexual assault, four counts of criminal sexual assault, and four counts of aggravate criminal sexual abuse for his actions on September 8, 1998. Ryburn pled guilty to three counts of aggravated criminal sexual assault, pursuant to a plea agreement, in exchange for the State’s dismissal of the remaining nine counts and other unrelated charges, recommendation of an aggregate sentence totaling no more than 60 years, and imposition of no fines. Id. at ¶ 4. Ryburn was sentenced to 20 years imprisonment for each of the three counts of aggravated criminal sexual assault, to be served consecutively. Id. at ¶ 5.

Shortly following sentencing, in December of 1999, Ryburn filed a motion to withdraw his guilty plea, alleging he did not enter it knowingly and voluntarily. The post-plea motion was denied by the trial court. Id. at ¶ 5. On direct appeal, Ryburn’s convictions and aggregate 60-year sentence were affirmed, despite arguments by appellant that his sentence was unconstitutional. Id. at ¶ 6. In June 2002, Ryburn filed a pro se petition for relief under the Post-Conviction Hearing Act, alleging he received ineffective assistance of counsel for the public defender’s failure to (a) raise a speedy trial claim, (b) call certain alibi witnesses, (c) present evidence to corroborate the alibi, (d) obtain police records to show the victim had a motive to fabricate her complaint, and (e) to decide to hold appellant fit to plead guilty.

Ryburn also alleged ineffective assistance of his appellate counsel for failing to raise the aforementioned issues on appeal. Id. at ¶ 7. The circuit court summarily dismissed the petition as frivolous and patently without merit, which was affirmed upon appeal. In July 2004, Ryburn once again unsuccessfully petitioned the court to set aside the guilty pleas for various claims of ineffective assistance of counsel and violation of supreme court rules. Id. at ¶ 8.

Between 2011 and 2015, Ryburn filed four motions for leave to file a successive post-conviction petitions; the first three were initially denied by the circuit court, then appealed, and dismissed upon appellant’s own motions. Id. at ¶ 10-12. The motions contained claims of actual innocence via involuntary intoxication, a breach of the plea agreement related to the mandatory three-year supervisory release term and claims that forensic evidence did not support the second and third counts of his indictment.

Ryburn’s fourth motion for leave, which was allowed by the court, alleged that the State had tendered a plea offer of 24 years’ imprisonment to the public defender’s office that was never conveyed to him, resulting in 36 more years in prison. Id. at ¶ 13. The petition proceeded through the first stage of postconviction proceedings to the second. At the second stage of proceedings, appointed counsel filed an amended post-conviction petition detailing the claims of ineffective assistance of counsel related to the failure to inform Ryburn of the plea offer and the failure of previous appellate counsel to raise the claim on appeal. Id. at ¶ 14. The court dismissed the amended post-conviction petition, claiming that Ryburn failed to show any objective factor that impeded his ability to raise his claim during the initial or subsequent post-conviction proceedings. Id. at ¶ 15. This appeal followed.

The appellate court determined the circuit court’s focus at the second stage of postconviction proceedings should be determining whether the petition’s allegations sufficiently show a constitutional infirmity that would necessitate relief under the Act. Id. at ¶ 22. The dismissal of a petition at the second stage of proceedings is only warranted when the allegations in the petition fail to make a substantial showing of a constitutional violation. Id at ¶ 22.

The appellate court disagreed with and rejected the State’s argument that the word “trial” in the definition of prejudice precludes a defendant who pleaded guilty from filing a successive post-conviction petition, on the grounds that both legislative intent and state supreme court rulings had indicated as much. Id. at ¶ 28. On appeal, Ryburn contended that his amended successive post-conviction petition made a substantial showing of both cause and prejudice, which was not challenged by the State. As such, the appellate court’s review of the substantiality of the petition’s cause and prejudice showings were conducted individually.

On cause, the court held that cause is shown by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings. Id. at ¶ 32. The court held that Ryburn’s ineffective assistance of counsel claims related to the plea offer made by the State in 1998, of which he was never informed by counsel or the State, was an objective, external factor that prevented appellant from raising the issue in the initial post-conviction petition. Id. at ¶ 34-36. The appellate court concluded that appellant did make a substantial showing of cause in this case.

On prejudice, the court held that prejudice is shown by “demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” Id. at ¶ 38. To this end, Ryburn alleged that his trial counsel was ineffective for failing to inform him of the 1998 plea offer from the State.

Ineffective assistance of counsel claims are analyzed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Id. at ¶ 39. To obtain a reversal under Strickland, an appellant must prove (1) his counsel’s performance failed to meet an objective standard of competence and (2) counsel’s deficient performance resulted in prejudice to the defendant.

The appellate court concluded that because the United States Supreme Court has previously held that defense counsel has a duty to communicate formal offers from the prosecution to defendants (as required by the sixth amendment) and Ryburn provided sufficient evidence of defense counsel’s failure to inform him of the State’s plea offer, he made a substantial showing of the deficiency prong of the Strickland test. Id. at ¶ 41. The appellate court further determined that Ryburn’s petition made a substantial showing of all four elements of the prejudice prong of the Strickland test by demonstrating a reasonable probability that (1) he would have accepted the plea offer but for counsel’s deficient advice, (2) the plea would have been entered without the State canceling it, (3) the circuit court would have accepted the plea bargain, and (4) “the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id. at ¶ 42.

Ultimately, the appellate court concluded that Ryburn made a substantial showing of both cause and prejudice and agreed with him that the circuit court erred by granting the State’s motion to dismiss. Id. at ¶ 43. As a result, the Fourth District held that Ryburn’s successive post-conviction petition should advance to the third stage of proceedings for an evidentiary hearing and reversed the decision of the trial court dismissing his petition.

Appellate court holds that State improperly participated in post-conviction hearing but decided not to remand

The appellant in People v. Ames, 2019 IL App (4th) 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.

 

Denial of leave to file successive petition reversed where day-for-day eligible 80-year sentence constituted de facto life sentence

The appellant in People v. Peacock, 2019 IL App (1st) 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.

Court’s order denying motion for leave to file successive petition reversed where trial court failed to consider youthful characteristics of defendant at sentencing

The appellant in People v. Parker, 2019 IL App (5th) 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.

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.