Opinion
NO. 4-17-0306
01-16-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSHUA W. KRUGER, Defendant-Appellant.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of Vermilion County
No. 99CF357
Honorable Karen E. Wall, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Presiding Justice Harris and Justice Knecht concurred in the judgment.
ORDER
¶ 1 Held: The circuit court did not err by denying defendant's motion for leave to file a successive postconviction petition.
¶ 2 In January 2017, defendant, Joshua W. Kruger, filed a motion for leave to file a successive postconviction petition. In his motion, defendant asserted this court lacked jurisdiction to entertain the State's 2000 interlocutory appeal, and thus our January 2002 judgment was void. In March 2017, the Vermilion County circuit court entered an order denying defendant's motion. Defendant appeals, asserting (1) his double jeopardy claim was properly raised in the successive postconviction petition and (2) his convictions violate the double jeopardy clause. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In August 1999, a grand jury indicted defendant on seven counts of first degree
murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 1998)) based on the July 14-15, 1999, death of Peter Godels, two counts of home invasion (720 ILCS 5/12-11(a)(2) (West 1998)), two counts of residential burglary (720 ILCS 5/19-3(a) (West 1998)), and one count of attempt (robbery) (720 ILCS 5/8-4(a), 18-1(a) (West 1998)). In investigating Godels's murder, the police had obtained a search warrant for defendant's vehicle, which commanded the vehicle be searched and the following items be seized: "clothing belonging to [defendant], clothing bearing evidence of blood stains, shoes, crowbar, ski mask, and gloves, any bludgeon, tire iron, or object capable of causing the blunt force trauma to the victim or other items which constitute evidence of the offense of Murder ***." An Illinois State Police crime scene technician searched defendant's vehicle and seized several items, including a chrome casing from the front passenger door. The technician also took various tapings for fingerprint identification and a swabbing of a stain on the bottom of the steering column. In October 1999, an Illinois State Police forensic scientist tested blood from a stain on the chrome casing, and the deoxyribonucleic acid (DNA) from the bloodstain matched Godels's DNA profile.
¶ 5 In July 2000, defendant filed a motion to suppress evidence seized as beyond the scope of the warrant, asserting the following were outside the scope of the search warrant: (1) the swabbing of the stain on the bottom of the steering column, (2) the chrome casing removed from the passenger front door, (3) the door strap removed from the right rear passenger door, (4) the ashtray removed from the right rear passenger door, and (5) the tapings taken from various areas inside the vehicle. On August 28, 2000, the circuit court entered a written order granting in part defendant's motion to suppress. The court excluded the tapings and fingerprint evidence. However, it found bloodstains obtained from the swab were admissible, as well as "any items taken from the vehicle which were in plain view." Defense counsel orally requested the court to
clarify whether it had suppressed the items "physically removed from the vehicle," namely, the steering wheel cover, chrome casing, door strap, and ashtray. The court responded, "Right. Not plain view." The State did not appeal the court's August 28, 2000, order.
¶ 6 On October 31, 2000, defendant filed a sixth motion in limine, seeking to bar the State from mentioning or eliciting any testimony regarding the DNA test that matched blood found on the chrome casing with Godels's DNA. Defendant's motion contended the blood evidence was inadmissible for the same reason as the chrome casing and was "nothing more than 'Fruits of the poisonous tree' (evidence found from anything illegally seized)." On November 1, 2000, the circuit court called the case for trial and held a hearing on pretrial motions in the morning. In arguing defendant's sixth motion in limine, the prosecutor stated he did not understand the court was suppressing the chrome casing and requested the court to reconsider its ruling. He explained the crime scene technician had to remove the chrome casing because it could not be swabbed for blood. The State argued the chrome casing was within the scope of the warrant and the police had probable cause to search without a warrant. The court denied the State's oral motion to reconsider and granted defendant's sixth motion in limine. It scheduled jury selection for that afternoon and recessed.
¶ 7 When the circuit court reconvened, the State tendered a notice of appeal "[i]nstanter in open court." The State also filed a certificate of impairment that day. The notice of appeal stated that the State was appealing orders "[s]uppressing evidence and denying a motion to reconsider the suppression and allowing Defendant's 6th Motion in Limine." The circuit court found the State's notice of appeal was untimely with respect to the August 28, 2000, suppression order and stated it would proceed to trial. The prosecutor notified the court that the State would not be participating in the trial. Thereafter, defendant waived his right to a jury.
The court called the case for a bench trial and granted defendant's motion for a directed verdict of not guilty without receiving any evidence. The court entered judgment of not guilty on all charges.
¶ 8 On appeal, this court found it had jurisdiction of the circuit court's November 1, 2000, order under Illinois Supreme Court Rule 604(a)(1) (eff. Nov. 1, 2000), which allowed the State to appeal from an order the substantive effect of which results in suppressing evidence. People v. Kruger, 327 Ill. App. 3d 839, 843, 764 N.E.2d 138, 141 (2002). We then addressed the merits of the State's argument and concluded the circuit court erred in suppressing the blood and DNA evidence. Kruger, 327 Ill. App. 3d at 845, 764 N.E.2d at 142. Thus, this court (1) vacated the circuit court's judgment finding defendant not guilty; (2) reversed the circuit court's November 1, 2000, orders denying the State's motion to reconsider the suppression of the chrome casing and granting defendant's sixth motion in limine, and (3) remanded the case for a new trial. Kruger, 327 Ill. App. 3d at 845, 764 N.E.2d at 142. Defendant filed a petition for leave to appeal to the Illinois Supreme Court, and the supreme court denied defendant's petition. People v. Kruger, 201 Ill. 2d 595, 786 N.E.2d 193 (Oct. 2, 2002) (denying defendant's petition for leave to appeal).
¶ 9 While the State's appeal was pending, the State filed a new indictment that restated the charges from the original indictment and added four counts that raised aggravating factors. After a June 2003 trial, a jury found defendant guilty of felony murder, home invasion, residential burglary, and attempt (robbery). The jury found him not guilty of intentional murder. In August 2003, the circuit court sentenced defendant to concurrent prison terms of natural life for felony murder, 30 years for home invasion, 15 years for residential burglary, and 5 years for attempt (robbery). Defendant filed a direct appeal and raised eight issues. People v. Kruger, 363
Ill. App. 3d 1113, 1119, 845 N.E.2d 96, 101 (2006). In March 2006, this court affirmed defendant's convictions but remanded the cause with directions to correct the written sentencing judgment to reflect defendant was convicted of felony murder, not intentional murder. Kruger, 363 Ill. App. 3d at 1124, 845 N.E.2d at 105. Defendant filed a petition for leave to appeal to the Illinois Supreme Court, which the supreme court denied. People v. Kruger, 219 Ill. 2d 582, 852 N.E.2d 244 (May 24, 2006) (denying defendant's petition for leave to appeal).
¶ 10 Defendant has filed numerous collateral challenges to his convictions and sentences. In November 2006, defendant filed a pro se postconviction petition raising 12 grounds for relief. He later filed an amended pro se postconviction petition, which the circuit court dismissed at the second stage of the proceedings. Defendant appealed, and this court affirmed the dismissal but vacated defendant's conviction and sentence for residential burglary and corrected defendant's murder conviction to show conviction for felony murder predicated on residential burglary. People v. Kruger, 2012 IL App (4th) 100866-U, ¶ 21. We remanded the cause with directions to issue an amended sentencing judgment consistent with our judgment. Kruger, 2012 IL App (4th) 100866-U, ¶ 21.
¶ 11 In October 2011, defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Defendant's section 2-1401 petition requested vacatur of the Vermilion County circuit court's October 25, 2010, judgment denying defendant's request for a search of the DNA database. On November 4, 2011, the circuit court sua sponte denied defendant's section 2-1401 petition on the merits. Defendant appealed the court's denial. In a March 1, 2013, summary order, this court reversed the circuit court's denial because (1) defendant had not properly served the State and (2) the court's denial occurred prior to the expiration of the 30 day period for which the State had to
respond to the petition. People v. Kruger, No. 4-11-1033 (Mar. 1, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)). In October 2013, the circuit court dismissed defendant's section 2-1401 petition for want of prosecution and denied defendant's section 2-1401 petition on the merits. Defendant again appealed. This court first denied OSAD's motion to withdraw as counsel (People v. Kruger, 2015 IL App (4th) 131080, 45 N.E.3d 1103, appeal denied, No. 120765, 60 N.E.3d 878 (Ill. Sept. 28, 2016)) and later affirmed the circuit court's denial of defendant's section 2-1401 petition on the merits (People v. Kruger, No. 4-13-1080 (Mar. 14, 2016) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 12 In August 2013, defendant filed a pro se motion for leave to file a successive postconviction petition, which the circuit court denied in October 2013. Defendant appealed, and this court affirmed the denial. People v. Kruger, 2015 IL App (4th) 130995-U. Defendant filed a petition for leave to appeal to the Illinois Supreme Court, which the supreme court denied. People v. Kruger, No. 119864, 42 N.E.3d 373 (Ill. Nov. 25, 2015) (denying defendant's petition for leave to appeal).
¶ 13 In January 2017, defendant filed his second motion for leave to file a successive postconviction petition, which is at issue in this appeal. Defendant contends this court's January 2002 opinion, which vacated the not guilty findings, reversed the circuit court's suppression of the DNA evidence from the blood on the chrome casing, and remanded for a new trial, is void because this court lacked jurisdiction to enter it. In his proposed successive postconviction petition, defendant asserts a double jeopardy violation based on his retrial after the circuit court had found him not guilty. On March 28, 2017, the circuit court entered a written order, denying defendant's motion for leave to file a successive postconviction petition.
¶ 14 On April 20, 2017, defendant filed a timely notice of appeal in sufficient
compliance with Illinois Supreme Court Rule 606 (eff. Dec. 11, 2014). Thus, this court has jurisdiction of defendant's appeal under Illinois Supreme Court Rule 651(a) (eff. Feb. 6, 2013).
¶ 15 II. ANALYSIS
¶ 16 Defendant argues his double jeopardy claim was properly raised in his successive postconviction petition. The State disagrees with defendant's argument. When the circuit court has not held an evidentiary hearing, this court reviews de novo the denial of a defendant's motion for leave to file a successive postconviction petition. See People v. Gillespie, 407 Ill. App. 3d 113, 124, 941 N.E.2d 441, 452 (2010).
¶ 17 Section 122-1(f) of the Post-Conviction Hearing Act (725 ILCS 5/122-1(f) (West 2016)) provides the following:
"Only one petition may be filed by a petitioner under this Article without leave of the court. 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. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice 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."
Thus, for a defendant to obtain leave to file a successive postconviction petition, both prongs of the cause and prejudice test must be satisfied. People v. Guerrero, 2012 IL 112020, ¶ 15, 963
N.E.2d 909.
¶ 18 However, even when a petitioner cannot show cause and prejudice, "his failure to raise a claim in an earlier petition will be excused if necessary to prevent a fundamental miscarriage of justice." People v. Pitsonbarger, 205 Ill. 2d 444, 459, 793 N.E.2d 609, 621 (2002). "To demonstrate such a miscarriage of justice, a petitioner must show actual innocence ***." Pitsonbarger, 205 Ill. 2d at 459, 793 N.E.2d at 621. The evidence in support of a claim of actual innocence must be (1) newly discovered, (2) material and not merely cumulative, and (3) " 'of such conclusive character that it would probably change the result on retrial.' " People v. Ortiz, 235 Ill. 2d 319, 333, 919 N.E.2d 941, 950 (2009) (quoting People v. Morgan, 212 Ill. 2d 148, 154, 817 N.E.2d 524, 527 (2004)).
¶ 19 In his petition for leave to file a successive postconviction petition, defendant neither argues cause and prejudice nor actual innocence. Instead, he raises a void judgment claim, asserting this court lacked jurisdiction to entertain the State's 2000 interlocutory appeal. However, this court specifically addressed our jurisdiction of the State's appeal in our opinion and concluded we had jurisdiction of the State's appeal under Rule 604(a)(1). Kruger, 327 Ill. App. 3d at 843, 764 N.E.2d at 141.
¶ 20 "The law of the case doctrine bars relitigation of an issue previously decided in the same case." People v. Peterson, 2017 IL 120331, ¶ 25 (citing People v. Sutton, 233 Ill. 2d 89, 100, 908 N.E.2d 50, 58 (2009)). Thus, when the appellate court decides an issue of law in a first appeal, the appellate court's decision is generally binding upon that court in a second appeal. Peterson, 2017 IL 120331, ¶ 25 (citing Sutton, 233 Ill. 2d at 100, 908 N.E.2d at 58). "Like other preclusion doctrines, such as res judicata and collateral estoppel, the law-of-the-case doctrine prevents a defendant from taking two bites out of the same apple." Diocese of Quincy v.
Episcopal Church, 2016 IL App (4th) 150193, ¶ 28, 56 N.E.3d 573. The following two exceptions to the law of the case doctrine exist: "(1) if a higher reviewing court makes a contrary ruling on the same issue after the lower court's decision, or (2) if a reviewing court determines that its prior decision was palpably erroneous." Diocese of Quincy, 2016 IL App (4th) 150193, ¶ 28. Neither exception applies here.
¶ 21 First, as to a higher court making a contrary ruling on the same issue, our supreme court denied defendant's petition for leave to appeal this court's January 29, 2002, opinion. Kruger, 201 Ill 2d 595, 786 N.E.2d 193. Thus, the supreme court never addressed this court's jurisdictional ruling regarding the State's interlocutory appeal. Moreover, defendant does not cite any other cases that made a contrary ruling on jurisdiction, and we are unaware of any such case.
¶ 22 Second, regarding the palpably erroneous exception, it only applies "in the very rarest of situations." Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 12, 986 N.E.2d 765. The court's prior decision must have been "obviously or plainly wrong." Radwill, 2013 IL App (2d) 120957, ¶ 12. Stated differently, a court's decision will be found to be palpably erroneous "only if that decision was clearly erroneous and would work a manifest injustice." Radwill, 2013 IL App (2d) 120957, ¶ 12. "The fact that a court might reach a different conclusion if it had to consider the issue anew does not mean that the court's prior decision was palpably erroneous." Radwill, 2013 IL App (2d) 120957, ¶ 12.
¶ 23 Defendant asserts our prior jurisdiction determination was incorrect because the State's notice of appeal was untimely. However, this court specifically found we had jurisdiction over the circuit court's November 1, 2000, order granting defendant's sixth motion in limine, not the circuit court's August 28, 2000, ruling on defendant's motion to suppress certain items seized
as beyond the scope of the warrant. Kruger, 327 Ill. App. 3d at 843, 764 N.E.2d at 141. Defendant also argues the denial of the motion in limine was not a new suppression order. He asserts it was clear the chrome casing taken from defendant's car was the subject of his motion to suppress. However, this court specifically found the issue was whether the State timely appealed the circuit court's November 1, 2000, order "with respect to the DNA test result, which was a distinct item of evidence apart from the chrome casing." Kruger, 327 Ill. App. 3d at 843, 764 N.E.2d at 141. We further noted "[i]t was not clear that DNA test results from the chrome casing were suppressed until the November 1 order. Therefore, the State's appeal of the November 1 order is timely." Kruger, 327 Ill. App. 3d at 843, 764 N.E.2d at 141. That determination is legally correct, as the State's November 1, 2000, notice of appeal was clearly filed within the 30 day period after the November 1, 2000, order granting of defendant's sixth motion in limine. See People v. Holmes, 235 Ill. 2d 59, 67, 919 N.E.2d 318, 324 (2009) (noting "a party seeking review of an order appealable under Rule 604(a)(1) must timely appeal or file a motion to reconsider within 30 days."). Factually, this court's finding was a reasonable interpretation of the record as the circuit court's August 28, 2000, order did not specifically address the test results from the blood found on the chrome casing. Accordingly, this court's jurisdiction finding was not palpably erroneous.
¶ 24 Since this court has concluded we had jurisdiction of the circuit court's November 1, 2000, order, our January 29, 2002, judgment was not void for lack of jurisdiction. Thus, defendant has failed to show he was entitled to file a successive postconviction petition based on a void judgment. Defendant did not argue actual innocence in his motion for leave to file a successive postconviction or on appeal. As to cause and prejudice, we agree with the circuit court defendant's motion for leave to file a successive postconviction petition established neither
cause nor prejudice. See 725 ILCS 5/122-1(f) (West 2016). As the circuit court noted, defendant did not identify any objective factor that prevented him from raising his claim in his initial postconviction petition. In fact, defendant never even argued cause and prejudice in his motion for leave to file a successive postconviction petition. Accordingly, defendant has forfeited his cause and prejudice argument on appeal. People v. Magallanes, 409 Ill. App. 3d 720, 725-26, 948 N.E.2d 742, 748-49 (2011) (noting arguments made for the first time on appeal are deemed forfeited). Thus, defendant has failed to establish a basis for allowing him leave to file a successive postconviction petition.
¶ 25 " 'Where a defendant fails to first satisfy the requirements under section 122-1(f), a reviewing court does not reach the merits or consider whether his successive postconviction petition states the gist of a constitutional claim.' " People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 38, 38 N.E.3d 1256 (quoting People v. Welch, 392 Ill. App. 3d 948, 955, 912 N.E.2d 756, 762 (2009)). Thus, we do not reach the merits of defendant's double jeopardy argument. Accordingly, we find the circuit court's denial of defendant's motion for leave to file a successive postconviction petition was proper.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we affirm the Vermilion County circuit court's judgment. As part of our judgment, we award the State its $75 statutory assessment against defendant as costs of this appeal.
¶ 28 Affirmed.