People v. Edwards , 2012 IL App (1st) 91651 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Edwards, 2012 IL App (1st) 091651
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption WAYNE EDWARDS, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-09-1651
Filed February 17, 2012
Rehearing denied March 20, 2012
Held The denial of defendant’s motion for leave to file a successive
(Note: This syllabus postconviction petition alleging the ineffectiveness of his appellate
constitutes no part of counsel was affirmed where defendant failed to show any prejudice under
the opinion of the court the cause and prejudice test that would warrant the filing of a successive
but has been prepared petition.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 94-CR-16717; the
Review Hon. Marcus R. Salone, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Lauren A. Bauser, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Margaret M. Smith, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE GARCIA delivered the judgment of the court, with opinion.
Justices Lampkin and Palmer concurred in the judgment and opinion.
OPINION
¶1 Defendant Wayne Edwards appeals from the denial of a motion for leave to file a
successive postconviction petition. The defendant was found guilty by a jury of criminal drug
conspiracy and sentenced to 30 years in prison. While his direct appeal was pending, the
defendant filed a pro se postconviction petition, which the circuit court summarily dismissed.
His appeal from the dismissal of his first postconviction petition was consolidated with his
direct appeal. We affirmed his conviction and the dismissal of his petition. Thereafter, the
defendant sought leave to file a second postconviction petition in which he raised claims of
ineffective assistance of trial counsel, appellate counsel, and postconviction counsel, circuit
court error in its ruling on his first petition, and denial of due process. The circuit court
denied leave to file the petition. Following the timely filing of his pro se motion to reconsider
the denial of leave to file a successive petition, the defendant retained counsel, who filed a
second amended motion to reconsider and reinstate the successive petition. While
postconviction counsel’s motion was pending, the defendant filed pro se a third amended
motion for leave to file the successive postconviction petition. He alleged cause and
prejudice were demonstrated when the statute of limitations in effect at the time for filing
postconviction petitions expired before his direct appeal was resolved. As a result, his claim
that appellate counsel rendered ineffective assistance could only be raised in a successive
postconviction petition. Following a hearing, the circuit court concluded the defendant failed
to meet the cause and prejudice test to file a successive petition. We affirm.
¶2 BACKGROUND
¶3 On June 6, 1994, the defendant, with four codefendants, was charged by indictment with
multiple counts of criminal drug conspiracy. The charges arose from drug sales by a street
gang on the west side of Chicago. The indictment alleged that the defendant organized and
supervised the wholesale and street-level retail distribution of heroin for the street gang.
According to the indictment, the defendant oversaw the procurement, cutting, packaging, and
distribution of the heroin and had others arrange meetings with individuals seeking to
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purchase heroin.
¶4 On October 15, 1997, a jury found the defendant guilty of criminal drug conspiracy to
deliver between 5 and 10 grams of heroin. He was also found guilty of conspiring to possess
at least 15 grams but less than 100 grams of heroin with the intent to deliver. The circuit
court sentenced the defendant to 30 years in prison. The defendant filed a timely notice of
appeal.
¶5 On October 11, 2000, while his direct appeal was pending, the defendant filed his initial
pro se postconviction petition. The statute of limitations then in effect under section 122-1(c)
of the Post-Conviction Hearing Act (Act) required the filing of a postconviction petition
within three years of the date of conviction. 725 ILCS 5/122-1(c) (West 2000) (“No
proceedings under this Article shall be commenced more than *** 3 years from the date of
conviction ***.”). The defendant alleged in his petition that the trial judge violated his
constitutional rights by threatening to sentence him to the maximum 30-year prison term if
he refused the judge’s offer of a 29-year sentence in exchange for a guilty plea. The circuit
court summarily dismissed the initial petition on November 29, 2000. The defendant’s appeal
from the summary dismissal of his first postconviction petition was consolidated with his
direct appeal.
¶6 On November 26, 2002, this court affirmed the defendant’s conviction and the summary
dismissal of his initial postconviction petition. People v. Edwards, 337 Ill. App. 3d 912
(2002). In the unpublished portion of the opinion, we held that the defendant’s initial
postconviction petition was subject to summary dismissal because it was unsupported by
affidavits, records, or other evidence and provided no explanation for the absence of the
required supporting documentation.
¶7 On April 13, 2004, the defendant filed his pro se motion seeking leave to file a
successive postconviction petition. The successive petition included allegations of ineffective
assistance of appellate counsel grounded in part on this court’s opinion that certain issues
raised on appeal lacked citation to the record or legal authority, which resulted in the issues
being forfeited. The defendant also faulted appellate counsel for failing to raise several trial
errors and instances of trial counsel’s ineffectiveness.
¶8 On July 14, 2004, the circuit court denied the defendant’s request for leave to file the
successive petition. On August 2, 2004, the defendant filed a motion to reconsider the circuit
court’s denial, arguing (1) the court erred by dismissing his petition sua sponte after more
than 90 days had passed since the filing of his petition in violation of section 122-2.1(a)(2)
of the Act (725 ILCS 5/122-2.1(a)(2) (West 2004)), (2) the court erred by ruling on his
petition when a motion for substitution of judge was pending, and (3) he did not receive
notice of the denial of his petition within 10 days as required by section 122-2.1(a)(2) of the
Act.
¶9 On August 12, 2004, the defendant filed a notice of appeal from the July 14, 2004 order.
While the appeal was pending, retained counsel filed on April 11, 2005, a “Corrected Second
Amended Motion to Reinstate Post Conviction Petition Because Any Order Of Dismissal
Was Void,” reasserting that the dismissal of the successive petition was not entered within
the statutorily prescribed 90 days of the filing of the successive postconviction petition and
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that the defendant was not given notice of the dismissal within 10 days of its entry as
provided by statute. This court dismissed the appeal as premature because the August 2, 2004
motion to reconsider remained pending before the circuit court.
¶ 10 On August 23, 2007, retained counsel appeared before the circuit court to seek resolution
of the pending motions. On February 27, 2009, before the pending motions were resolved,
the defendant filed pro se a “Corrected 3rd Amended Motion to Reinstate Petition for Leave
to file a Successive Post Conviction Petition under § 122-1(f).” The defendant argued he
satisfied the statutory cause and prejudice test of the Act. He claimed cause to permit the
filing of a successive postconviction petition based on the impending expiration of the statute
of limitations for the filing of postconviction petitions in 2000, which forced him to file his
initial postconviction petition while his direct appeal was pending. 725 ILCS 5/122-1(c)
(West 2000). The defendant claimed he demonstrated prejudice by the meritorious claims
of ineffectiveness of appellate counsel he raised, which would escape review if leave to file
a successive postconviction petition were not granted and thus violate his due process rights.
725 ILCS 5/122-1(f) (West 2004).
¶ 11 On May 21, 2009, the circuit court heard argument on the defendant’s motion to
reconsider the denial of his successive petition. The court characterized the defendant’s
motion to reconsider as a consolidated motion for leave to file a successive petition. The
court denied the defendant’s motion. The court vacated its order of July 14, 2004, leaving
the order of May 21, 2009, as the only order in which leave to file was denied. The defendant
timely appeals.
¶ 12 ANALYSIS
¶ 13 The defendant raises the threshold issue of the amount of showing he must make to
satisfy the cause and prejudice test for filing a successive postconviction petition. He
contends he need only present a “gist” of cause and prejudice to permit the filing. He relies
on a decision from the Second District that first addressed this issue in great detail. People
v. LaPointe, 365 Ill. App. 3d 914, 922-23 (2006), aff’d on other grounds, 227 Ill. 2d 39
(2007). The defendant argues he made a “gist” showing of cause and prejudice, which means
the circuit court erred when it denied his motion for leave to file a successive postconviction
petition. He asserts all the reasons given by the LaPointe appellate court decision in favor
of the lower threshold “gist” standard to permit the filing of a successive petition.
¶ 14 The defendant asserts the circuit court’s denial of leave to file a successive
postconviction petition constituted error because it “completely foreclosed [him] from
challenging his appellate counsel’s actions in violation of his right to due process and to
effective assistance of counsel.” The defendant asserts he demonstrated cause to permit a
successive petition because he was forced to file his initial postconviction petition while his
direct appeal was pending or be barred from filing his petition by the three-year filing period
in effect at the time. 725 ILCS 5/122-1(c), (f) (West 2004). The defendant contends he
established prejudice, as he states in his main brief, “because *** appellate counsel’s
ineffectiveness [on direct appeal and appeal from the summary dismissal of] *** his initial
petition precluded him from obtaining review of several potentially meritorious claims of
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error at trial.”
¶ 15 The State rejects the proposition that the gist threshold applies to the cause and prejudice
test. The State takes the position that the supreme court’s decision not to review the portion
of the LaPointe opinion endorsing the gist standard for a cause and prejudice showing should
be read as an implicit rejection of that standard. In LaPointe, the supreme court addressed
only the defendant’s contention that his successive petition was required to be docketed
because the dismissal order was entered 91 days after the petition was stamped as filed by
the clerk’s office. LaPointe, 227 Ill. 2d at 42-44. At oral argument before this court, the State
declined to take a position as to the threshold showing to satisfy the cause and prejudice test,
other than to argue that a “gist” showing is insufficient to grant leave to file a successive
petition. The State repeated its contention that a defendant must make “some showing”
(greater than a gist) of both cause and prejudice to permit the filing of a successive petition
under section 122-1(f) of the Act. As to the sufficiency of the defendant’s “cause and
prejudice” motion in this case, the State concedes the defendant “has established cause for
his failure to include the claims he sought to raise in a successive postconviction petition in
his original post-conviction petition.” However, the State insists the defendant “has failed
to demonstrate that his alleged claims so infected either his trial or his direct appeal that his
resulting convictions violated due process” to satisfy the prejudice prong.
¶ 16 In 2004, the Illinois legislature amended the Act by adopting the cause and prejudice test
for successive petitions first announced by the Illinois Supreme Court in People v.
Pitsonbarger, 205 Ill. 2d 444 (2002). 725 ILCS 5/122-1(f) (West 2004). The Act was
amended to reflect the legislature’s intent to limit a defendant to a single postconviction
petition, except where a possible due process violation compels the filing of a successive
petition. See 725 ILCS 5/122-1(f) (West 2004). Successive petitions are discouraged because
“the defendant has already had ‘one complete opportunity to show a substantial denial of his
constitutional rights.’ ” People v. Free, 122 Ill. 2d 367, 376 (1988) (quoting People v. Logan,
72 Ill. 2d 358, 370 (1978)); see also People v. Mackey, 229 Ill. App. 3d 784, 788 (1992).
¶ 17 The legislative intent to limit successive petitions is also reflected in the enactment of
section 22-105 of the Code of Civil Procedure (735 ILCS 5/22-105 (West 2006)), which
mandates the assessment of fees and costs when a postconviction petition is found to be
frivolous and patently without merit. See People v. Conick, 232 Ill. 2d 132, 141 (2008)
(purpose of section 22-105 is “to curb the large number of frivolous collateral pleadings filed
by prisoners which adversely affect the efficient administration of justice, and to compensate
the courts for the time and expense incurred in processing and disposing of them”).
¶ 18 In People v. Flores, 153 Ill. 2d 264, 274 (1992), the supreme court noted the competing
interests in assessing when successive postconviction petitions should be permitted to be
filed.
“On the one hand, there is the State’s interest in providing a forum for the vindication of
the petitioner’s constitutional rights. On the other hand, the State has a legitimate interest
in the finality of criminal litigation and judgments. ‘Without finality, the criminal law is
deprived of much of its deterrent effect.’ The successive filing of post-conviction
petitions plagues that finality.” Id. (quoting Teague v. Lane, 489 U.S. 288, 309 (1989)).
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¶ 19 Thus, the cause and prejudice test in section 122-1(f) of the Act balances the competing
interests by limiting a successive petition only when its filing is necessary “to prevent a
fundamental miscarriage of justice.” Pitsonbarger, 205 Ill. 2d at 459. Section 122-1(f)
requires that a defendant first obtain “leave of court” to institute a successive postconviction
proceeding. 725 ILCS 5/122-1(f) (West 2004); People v. Tidwell, 236 Ill. 2d 150, 157 (2010).
Indeed, a successive petition “is not considered ‘filed’ for purposes of section 122-1(f), and
further proceedings will not follow, until leave is granted, a determination dependent upon
a defendant’s satisfaction of the cause-and-prejudice test.” Tidwell, 236 Ill. 2d at 161; People
v. Wyles, 383 Ill. App. 3d 271, 274 (2008) (the presentation of a second postconviction
petition does not necessarily trigger review of its merits). Cause and prejudice must be shown
before leave of court is granted to file a successive petition. 725 ILCS 5/122-1(f) (West
2004) (“Leave of court 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.”). The 90-day statutory period within which the circuit court must
rule or else trigger the automatic docketing of an initial postconviction petition for second-
stage consideration does not apply to successive petitions until leave is granted to file the
successive petition. LaPointe, 227 Ill. 2d at 44.
¶ 20 A defendant shows “cause” by identifying an objective factor external to the defense that
impeded his efforts to raise his claim in the earlier proceeding. People v. Pitsonbarger, 205
Ill. 2d 444, 462 (2002). “ ‘Prejudice’ exists where the defendant can show that the claimed
constitutional error so infected his trial that the resulting conviction violated due process.”
People v. Morgan, 212 Ill. 2d 148, 154 (2004). The cause and prejudice test is to be applied
to individual claims, not to the petition as a whole. Pitsonbarger, 205 Ill. 2d at 462.
¶ 21 Generally, Illinois courts have adhered to the “more exacting” cause and prejudice
standard when assessing a motion for leave to file a successive postconviction petition.
Conick, 232 Ill. 2d at 142; see also People v. Tidwell, 236 Ill. 2d 150, 156 (2010); People v.
Brown, 225 Ill. 2d 188, 206 (2007); People v. Pendleton, 223 Ill. 2d 458, 476 (2006); People
v. Munoz, 406 Ill. App. 3d 844, 850-51 (2010); People v. McDonald, 405 Ill. App. 3d 131,
135 (2010). The Conick court’s juxtaposing the review of an initial petition under the “ ‘gist’
standard” and “a proffered successive petition subject to the more exacting cause and
prejudice standard” (emphasis added) (Conick, 232 Ill. 2d at 142), calls into question the
declaration in the Second District’s decision in LaPointe that “a section 122-1(f) motion need
state only the gist of a meritorious claim of cause and prejudice.” LaPointe, 365 Ill. App. 3d
at 924. The supreme court’s rejection in LaPointe that the 90-day period for docketing an
initial petition applies to successive petitions also argues against the Second District’s
position. LaPointe, 227 Ill. 2d at 44 (“LaPointe’s argument ignores the fact that the Act treats
successive petitions differently than initial petitions.”).
¶ 22 Given the clear pronouncements from the Illinois Supreme Court that the successive
petitions are treated differently from initial petitions and that the cause and prejudice test is
“more exacting” than a “gist” showing, we are unpersuaded by the Second District’s
conclusion that a gist showing of cause and prejudice is sufficient to permit the filing of a
successive petition under section 122-1(f) of the Act. Nonetheless, we begin our examination
of the defendant’s showing in this appeal with the “gist” showing. If the defendant fails to
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satisfy the “gist” standard, then it necessarily follows that he cannot meet a “more exacting”
standard.
¶ 23 A gist is something more than a bare allegation, but something less than a fully stated
claim. See People v. Edwards, 197 Ill. 2d 239, 244 (2001). To satisfy the “gist” standard a
pro se petition “must set forth some facts which can be corroborated and are objective in
nature or contain some explanation as to why those facts are absent.” Delton, 227 Ill. 2d at
254-55. See also People v. Jones, 399 Ill. App. 3d 341, 358 (2010) (where we noted that the
supreme court’s decision in People v. Hodges, 234 Ill. 2d 1, 11 (2009), resolved the
“tension” between the “gist” standard and the legal standard of “frivolous or patently without
merit”).
¶ 24 In the instant appeal, the State concedes that a sufficient showing of the cause prong of
the test has been satisfied here. It is fair to say that even if a substantial showing of cause
were required, the defendant has met that burden. The defendant could not have raised his
ineffective assistance of appellate counsel claims in his first postconviction petition given
that he was forced to file his first petition while his direct appeal was pending. The defendant
identified the statute of limitations then in existence as an “objective factor that impeded his
*** ability to raise [this] specific claim during his *** initial post-conviction proceedings.”
725 ILCS 5/122-1(f) (West 2004).
¶ 25 As in most cases, the dispute before us concerns the showing of prejudice. The defendant
has the burden to plead sufficient facts and submit supporting documentation sufficient to
allow the circuit court to make its prejudice determination. As with an initial postconviction
filing, in considering a motion for leave to file a successive petition, all well-pleaded facts
and supporting affidavits are taken as true. Pitsonbarger, 205 Ill. 2d at 455. A court
considering whether leave to file a successive petition should be granted must keep in mind
that “the defendant has already had one complete opportunity to show a substantial denial
of his constitutional rights.” (Internal quotation marks omitted.) Free, 122 Ill. 2d at 376. We
review de novo the circuit court’s denial of leave to file a successive petition. People v.
McDonald, 405 Ill. App. 3d 131, 135 (2010).
¶ 26 The defendant contends he was prejudiced by appellate counsel’s omissions on two
bases: (1) appellate counsel during his direct appeal failed to provide citations to the record
or to authority in violation of Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008) for
certain arguments, which we ruled resulted in forfeiture of those issues in affirming his
conviction and the summary dismissal of his initial postconviction petition; and (2) appellate
counsel’s failure to raise several “potentially meritorious claims of trial error and trial
counsel’s ineffectiveness.” According to the defendant, the circuit court’s denial of leave to
file a successive postconviction petition violated his due process rights by foreclosing his
challenge to appellate counsel’s performance. The defendant contends, “Because each of
these claims has an arguable legal and factual basis in the record, they are sufficient to
demonstrate the gist of a claim under Hodges.”
¶ 27 Problematic for the defendant, however, is that each of his contentions is founded on the
trial court record. See People v. Rogers, 197 Ill. 2d 216, 222 (2001) (Illinois courts have
“consistently upheld the dismissal of a post-conviction petition when the record from the
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original trial proceedings contradicts the defendant’s allegations”).
¶ 28 His initial claim is that appellate counsel forfeited arguably meritorious claims by failing
to provide this court with supporting citations, either to the record or case law, during the
defendant’s direct appeal. Given that appellate counsel at bar has the same record that was
available to counsel on direct appeal, if meritorious issues were forfeited, it would seem an
easy matter to provide us with that which appellate counsel in his first appeal failed to
provide. Yet, we are provided with no supporting record citation or case law that purports
to support the defendant’s claim of ineffective assistance by the omissions of appellate
counsel that resulted in the forfeiture of issues on direct appeal. Nor does our review of the
record reveal such support.
¶ 29 As to his second claim, we are once again not provided with any record citation of the
claimed “potentially meritorious claims of trial error and trial counsel’s ineffectiveness” that
appellate counsel on direct appeal failed to recognize and bring to our attention. The irony
of such unsupported claims by appellate counsel in the instant appeal regarding claims
against appellate counsel on direct appeal is not lost upon this court. Illinois Supreme Court
Rule 341(h)(7) (eff. July 1, 2008) applies to this appeal as it did to the defendant’s direct
appeal. Without facts in the record to support arguments raised in the instant appeal, such
arguments amount to no more than bare contentions, which do not merit consideration and
are deemed forfeited. See People v. Perea, 347 Ill. App. 3d 26, 37 (2004) (defendants failed
to articulate how their due process rights were violated). The defendant must demonstrate
by citation to the record the “arguable” legal and factual bases, at a minimum, for his
contentions of ineffectiveness of appellate counsel raised in his successive postconviction
petition. A reviewing court is entitled to have issues clearly defined with pertinent authority
cited and cohesive arguments presented; this court is not a repository into which an appellant
may foist the burden of argument and research; it is neither the function nor the obligation
of this court to act as an advocate or search the record for error. People v. Jacobs, 405 Ill.
App. 3d 210, 218 (2010). The defendant’s bald contention that he was prejudiced by the
performance of appellate counsel does not meet the standard of Rule 341(h)(7) (eff. July 1,
2008).
¶ 30 Forfeiture aside, we have the full record before us. No showing of prejudice can be made
when it is clear from our review that appellate counsel on direct appeal exercised
professional judgment in finding no support for those issues we concluded were forfeited on
direct appeal. Nor do we find support in the record of “potentially meritorious claims of trial
error and trial counsel’s ineffectiveness” that were overlooked by appellate counsel on direct
appeal. To the contrary, appellate counsel on direct appeal advocated, with supporting record
citation and case law, those arguments that presented the best chance of success. “Appellate
counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence
of counsel to refrain from raising issues which, in his or her judgment, are without merit,
unless counsel’s appraisal of the merits is patently wrong.” People v. Easley, 192 Ill. 2d 307,
329 (2000). The defendant has made no showing that “potentially meritorious claims” the
defendant now contends should have been raised had a better chance of success than those
actually pursued. Simply because the arguments raised on direct appeal were not successful
does not mean the choice to pursue them, over possible others, fell outside “the wide range
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of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
¶ 31 To succeed in his claim of prejudice, the defendant would also have to overcome the
strong presumption that appellate counsel’s representation was sound appellate strategy.
While appellate counsel’s decision as to which issues to raise is not beyond review by this
court, a review favorable to the defendant depends on citation to the record and the
presentation of legal authority to support proffered arguments. In the instant case, we are
presented with not even a “gist” showing that prejudice to the defendant arose from appellate
counsel’s performance on direct appeal. We will not second-guess counsel’s decision to
pursue certain issues on direct appeal when nothing more than the defendant’s bare
contentions are offered to support his contention that “meritorious” issues were left
undeveloped or omitted. See Easley, 192 Ill. 2d at 329 (“defendant has suffered no prejudice
from counsel’s failure to raise [nonmeritorious issues] on appeal”).
¶ 32 No prejudice has been shown under the cause and prejudice test to warrant the filing of
a successive petition for postconviction relief by this defendant. The defendant has failed to
meet even the claimed minimum threshold level of a “gist” showing to permit the filing of
a successive postconviction petition. See People v. Anderson, 375 Ill. App. 3d 121, 143
(2007) (defendant did not “state the gist of a meritorious claim of ineffective assistance of
counsel, because his assertion *** is directly refuted by the record below”). Though it is clear
that a substantial showing was made as to “cause,” both prongs must be met before leave to
file a successive petition will be granted. Here, where an insufficient showing of the
prejudice prong was made, the cause and prejudice test has not been satisfied. Pitsonbarger,
205 Ill. 2d at 466-67.
¶ 33 CONCLUSION
¶ 34 The circuit court did not err in denying the defendant’s motion for leave to file a
successive postconviction petition, alleging ineffectiveness of appellate counsel. Under the
facts of this case, the defendant failed to establish prejudice under section 122-1(f) of the
Act. Accordingly, the cause and prejudice test has not been met.
¶ 35 Affirmed.
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