Opinion
NO. 5-18-0273
05-10-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRYAN TAYLOR, Defendant-Appellant.
NOTICE
Decision filed 05/10/21. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Williamson County. No. 99-CF-288 Honorable Brian D. Lewis, Judge, presiding. PRESIDING JUSTICE BOIE delivered the judgment of the court.
Justices Moore and Wharton concurred in the judgment.
ORDER
¶ 1 Held: We reverse the order of the trial court dismissing defendant's amended petition at the second stage where defendant made a substantial showing of a constitutional violation within his claim of ineffective assistance of appellate counsel. ¶ 2 Defendant, Bryan Taylor, was found guilty of three counts of aggravated criminal sexual assault on December 6, 2002. On February 21, 2003, he was sentenced to three consecutive 30-year terms of imprisonment, to run consecutively to a 55-year sentence he was serving at the time of his trial in this matter. Defendant appealed his conviction and this court affirmed. People v. Taylor, 357 Ill. App. 3d 220, 227 (2005). On February 5, 2018, defendant filed an amended petition for postconviction relief pursuant to the Post-Conviction Hearing Act (amended petition) (725 ILCS 5/122-1 et seq. (West 2006)). The State filed a motion to dismiss defendant's amended petition on March 2, 2018, and on April 17, 2018, the trial court granted the State's motion and dismissed defendant's amended petition without an evidentiary hearing. ¶ 3 Defendant appeals the dismissal of his amended petition arguing that this court should remand for a third stage evidentiary hearing on his postconviction claim that his appellate counsel rendered ineffective assistance of counsel. Although not raised prior to this appeal, defendant also argues that his sentence was excessive and improperly ordered to be served consecutively to a sentence imposed on previous conviction. For the following reasons, we reverse the judgment of the trial court.
Defendant's brief states that defendant was subject to a 51-year sentence; however, defendant's presentencing report indicates that defendant was sentenced to incarceration for a total of 55 years in Saline County case No. 99-CF-110, on January 27, 2000. The precise sentence of incarceration imposed on defendant's previous conviction is not relevant to our analysis.
¶ 4 I. BACKGROUND
¶ 5 On December 6, 2002, defendant was found guilty of three counts of aggravated criminal sexual assault. On February 21, 2003, the trial court sentenced defendant to three consecutive 30-year terms of imprisonment, to run consecutively to a sentence of 55 years of imprisonment previously imposed on a prior conviction. Defendant appealed his conviction arguing that the State failed to lay an adequate foundation for deoxyribonucleic acid (DNA) evidence and expert opinion testimony, thus rendering the State's evidence insufficient to convict him. Taylor, 357 Ill. App. 3d at 225. This court found that defendant failed to make the proper objections at trial and failed to attack the deficient foundation laid by the State for its expert witnesses' reports and testimony within his written posttrial motion. As such, this court determined that defendant had waived the issue for review and could not avoid the consideration of waiver by arguing that the inadequate foundation laid by the State rendered the State's evidence insufficient to convict him. Id. at 226. Specifically, this court found that:
"[Defendant's] counsel pursued a trial strategy where he deliberately refrained from examining the State's witnesses regarding their procedures, analyses, and methodologies in hopes that the witnesses' testimony would appear inconsistent. The defendant cannot be heard now on this issue." Id. at 227.¶ 6 On March 30, 2006, defendant filed a pro se petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)). Defendant raised six issues in his pro se petition. First, defendant alleged that he was denied effective assistance of trial counsel when his trial counsel failed to preserve the error that the State did not lay an adequate foundation for DNA evidence and expert opinion testimony. Defendant also claimed that he had received ineffective assistance of trial counsel when his trial counsel failed to object to the State's use of the term "match" during closing arguments and when his trial counsel failed to argue that defendant's sentence was excessive. ¶ 7 Second, defendant's pro se postconviction petition claimed that the trial court violated his rights and abused its discretion in requiring the defendant to wear an electric stun device at trial without conducting a Boose test. Third, defendant alleged that the State violated his right to fair trial when it used the term "match" in its closing arguments in violation of the trial court's order. Fourth, defendant argued that the indictment charging him with aggravated criminal sexual assault was flawed because there was no evidence of penetration. Fifth, defendant claimed that his sentence was excessive and an abuse of discretion because the trial court failed to adequately consider several mitigating factors. Sixth, and finally, defendant argued that his extended term sentence was improperly applied by the trial court's use of an "extra judicial" finding of brutal and heinous to enhance his sentence. The trial court appointed counsel to represent defendant on June 13, 2006. On February 5, 2018, close to 12 years after counsel was appointed, an amended petition was filed on defendant's behalf. ¶ 8 We pause in setting forth the background at this point because we find it prudent to remind the trial court that it possesses "the inherent authority to control its own docket and the course of litigation, including the authority to prevent undue delays in the disposition of cases." J.S.A. v. M.H., 224 Ill. 2d 182, 196 (2007). From our review of the common law record, we note the numerous continuation requests from defendant's counsel and the State which were granted by the trial court along with the trial court's own copious continuances resulting in the extreme delay in the resolution of this matter. We cannot fathom the necessity of a nearly 12-year delay in the filing of the amended petition and urge the trial court to exercise its authority to prevent such delays in future cases. ¶ 9 Returning to the relevant background in this matter, defendant again raised the issue of ineffective assistance of trial counsel in his amended petition alleging that his trial counsel failed to object to the State's use of the term "match" in referencing the DNA evidence during closing arguments and failed to raise the issue within defendant's posttrial motion. Defendant's amended petition also claimed ineffective assistance of appellate counsel. According to defendant's amended petition, his appellate counsel rendered ineffective assistance of counsel by failing to raise the issue of ineffective assistance of trial counsel for trial counsel's failure to object to the State's use of the term "match" in its closing argument and failing to object to the lack of foundation for the DNA evidence and expert opinion testimony. Defendant acknowledged in his amended petition that the lack of foundation issue was raised on defendant's direct appeal but argued that his appellate counsel should have been aware that the issue would be subject to waiver unless presented through a claim of ineffective assistance of trial counsel. Defendant's amended petition further alleged ineffective assistance of appellate counsel for failing to challenge defendant's sentence on appeal. Finally, defendant's amended petition alleged that he was denied a fair trial when the State violated the trial court's order prohibiting the use of the term "match" during its closing argument concerning the DNA evidence. ¶ 10 On March 2, 2018, the State filed a motion to dismiss defendant's amended petition. In its motion to dismiss, the State argued that defendant's claims of ineffective assistance of trial counsel and his claim that the State denied him a fair trial by its use of "match" were both barred by the operation of waiver or forfeiture as these issues could have been previously adjudicated but were not. Further, the State argued that defendant failed to make a showing of ineffective assistance of either trial or appellate counsel because he could not show that their performance fell below an objective standard of reasonableness or that, but for counsels' decisions, the outcome of either defendant's trial or appeal would have been different. Defendant filed a response to the State's motion to dismiss on March 14, 2018. ¶ 11 On April 20, 2018, the trial court issued a written order granting the State's motion to dismiss. In its order, the trial court noted that defendant's trial counsel "was an experienced trial attorney, who, when one considers the trial and the defense as a whole, zealously and competently defended his client." Concerning defendant's claim that his appellate counsel was ineffective for failing to claim ineffective assistance of trial counsel, the trial court's written order stated that:
"[R]egarding the lack of challenges to the foundation of the testimony of the State's witnesses regarding the DNA testing, is not sound, when one examines the transcripts. At R-1074, during an argument to strike some of the State's witness testimony, or in the alternative, grant a mis-trial, a motion made by [defense counsel], the following discussion was had:
[The Court]: 'So what you're saying is that the theory of defense that you pursued was based on the information that you had was one report had four, the other had five; that was going to be your inconsistency, if you will?'
[Defense counsel]: 'Yes, sir.'
[The Court]: 'And, therefore, you didn't cross-examine as to lab procedures and testing and how it's done and in an effort to—'¶ 12 The trial court's written order also noted that defendant's sentence was within the statutory range of possible sentences and that the record contained no evidence that the trial judge abused his discretion in any "way, shape, or form." Based on the above findings, the trial court held that
[Defense counsel]: 'Number one, there was no reason to, because that was the inconsistency that was going to be argued. Number two, I didn't want any problems to show up in either one of the analysis individually, because I wanted it to be inconsistent.'
Therefor, [sic] it was part of [defense counsel's] trial strategy not to challenge the foundation of the testing itself, but to challenge the inconsistent results of said testing through cross-examination. Since it was part of the overall trial strategy, appellate counsel obviously, and correctly found it was not a basis for a claim of ineffective assistance of counsel."
"even through, at this stage, all well pleaded facts alleged in the Amended Petition are deemed admitted, the conclusions that the Defendant's constitutional rights were violated is not supported by the record. For these reasons, and those stated above, the State's Motion to Dismiss is granted."¶ 13 Defendant now appeals the dismissal of his amended petition arguing that this court should remand for a third stage evidentiary hearing on his postconviction claim that his appellate counsel rendered ineffective assistance of counsel by failing to raise ineffective assistance of trial counsel within his direct appeal. The defendant also argues, for the first time in this appeal, that his sentence exceeded the sum of the authorized maximum extended term for the two most serious felonies pursuant to section 5-8-4(c)(2) of Unified Code of Corrections (730 ILCS 5/5-8-4(c)(2) (West 1994)).
The background on defendant's trial and sentencing is fully set forth in People v. Taylor, 357 Ill. App. 3d 220, 221-25 (2005), and only those portions relevant to this appeal will be set forth in this decision.
People v. Boose, 66 Ill. 2d 261, 266 (1977), in which the Illinois Supreme Court held that "[t]he trial judge should state for the record his reasons for allowing the defendant to remain shackled, and he should give the defendant's attorney an opportunity to present reasons why the defendant should not be shackled."
¶ 14 II. ANALYSIS
¶ 15 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated in his original trial or sentencing hearing. People v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002). A postconviction proceeding is not an appeal from an underlying judgment, but rather a collateral attack on the judgment. People v. Towns, 182 Ill. 2d 491, 502 (1998). As a collateral proceeding, a postconviction proceeding allows inquiry only into constitutional issues that were not and could not have been adjudicated in an appeal of the underlying judgment. Id. ¶ 16 The Act sets forth a three-stage process for postconviction proceedings. People v. Little, 2012 IL App (5th) 100547, ¶ 12. At the first stage, the trial court independently assesses a defendant's petition and may summarily dismiss the petition if the court determines that it is frivolous or patently without merit. Id. If not dismissed at the first stage, the petition advances to the second stage where counsel may be appointed, and the State may move to dismiss the petition. Id. At the second stage, the trial court must determine whether the petition contains sufficient allegations of a constitutional violation, and if a substantial showing is made, the petition proceeds to the third stage for an evidentiary hearing. Id. In this matter, the trial court dismissed defendant's amended petition at the second stage and no evidentiary hearing was conducted. ¶ 17 The trial court's inquiry into whether a petition contains sufficient allegations of a constitutional deprivation at the second stage does not require the trial court to engage in any fact-finding or credibility determinations since the Act contemplates that such determinations will be made at the evidentiary stage. People v. Dupree, 2018 IL 122307, ¶ 29. As such, any allegations not affirmatively refuted by the record must be taken as true at the second stage. People v. Hall, 217 Ill. 2d 324, 334 (2005). The standard of review upon the dismissal of a postconviction petition at the second stage is de novo. Id.
¶ 18 A. Appellate Counsel
¶ 19 Defendant argues that the trial court erred in dismissing his amended petition without an evidentiary hearing because he had made a substantial showing of a constitutional violation within his claim of ineffective assistance of appellate counsel. Defendant states that his appellate counsel was ineffective for failing to raise the lack of foundation for the DNA evidence or expert opinion testimony claim as an ineffective assistance of trial counsel claim in order to avoid the operation of waiver. According to defendant's argument, if appellate counsel had raised ineffective assistance of trial counsel, the claim would not have been subject to the operation of waiver and there was a reasonable probability of success on appeal. As such, defendant argues that appellate counsel's failure to do so was both unreasonable and prejudicial. ¶ 20 A defendant is guaranteed the effective assistance of counsel on direct appeal as of right, and a claim of ineffective assistance of appellate counsel is cognizable under the Act. People v. Mack, 167 Ill. 2d 525, 531 (1995). A court uses the analysis set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), to determine the adequacy of appellate counsel. People v. Mahaffey, 165 Ill. 2d 445, 457 (1995). The Strickland analysis is composed of two prongs: deficiency and prejudice. Id. ¶ 21 First, defendant must prove that counsel's performance was so deficient that counsel was not functioning as the "counsel" guaranteed by the sixth amendment. Strickland, 466 U.S. at 688. A court measures counsel's performance by an objective standard of reasonableness under prevailing professional norms. Id. There is a strong presumption that a counsel's performance fell within the range of reasonable professional assistance. People v. Palmer, 162 Ill. 2d 465, 476 (1994). Further, "[t]o establish deficiency, the defendant must overcome the strong presumption that the challenged action or inaction might have been the product of sound trial strategy." People v. Evans, 186 Ill. 2d 83, 93 (1999). ¶ 22 Second, defendant must establish prejudice. Defendant must prove that, but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The prejudice prong of Strickland entails more than an "outcome-determinative" test and requires a defendant to show that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. Id. ¶ 23 We also note that 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). Thus, a reviewing court's inquiry as to prejudice requires that the reviewing court examine the merits of the underlying issue (Mack, 167 Ill. 2d at 534), for a defendant does not suffer prejudice from appellate counsel's failure to raise a nonmeritorious claim on appeal. Easley, 192 Ill. 2d at 329. Finally, a defendant must satisfy both prongs of the Strickland analysis, and failure to demonstrate either prong will defeat the claim. People v. Sanchez, 169 Ill. 2d 472, 487 (1996). ¶ 24 With the above principles in mind, we turn to defendant's claim that his appellate counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim concerning the lack of foundation of the DNA evidence and expert opinion testimony at trial. Our inquiry requires us to first examine the merits of the underlying issue of whether defendant's trial counsel was ineffective for failing to challenge the lack of foundation of the DNA evidence and expert opinion testimony based upon an unsound trial strategy. We note that our prior decision in Taylor does not bar us from considering this issue since our prior decision only determined that defendant's trial counsel's failure to challenge the DNA evidence foundation was based upon his trial strategy and not whether such strategy was professionally reasonable. Taylor, 357 Ill. App. 3d at 227. As such, this issue is not barred by res judicata. ¶ 25 Defendant argues that his trial counsel's failure to challenge the foundation of the DNA evidence or expert opinion testimony was not sound trial strategy but based on a mistake of fact and a lack of investigation. According to defendant's argument, trial counsel's strategy regarding the foundation of the DNA testing and opinions was based on a mistaken belief that no testing was conducted on the fifth locus of the DNA in question. Defendant claims, however, that his trial counsel received documents that suggested the testing was done and, as such, should have prompted his trial counsel to investigate and revise his strategy. Defendant argues that his trial counsel relied on defendant's expert's report of discrepancies but failed to provide the additional discovery to the expert or investigate the possible explanations that the expert provided for the discrepancies. ¶ 26 Counsel's strategic choices are virtually unchallengeable and mistakes in trial strategy or tactics or in judgment do not of themselves render the representation incompetent. Palmer, 162 Ill. 2d at 476. That another attorney might have pursued a different strategy is also not a factor in the competency determination. Id. The presumption that the challenged action or inaction was the product of sound trial strategy may only be overcome where no reasonably effective counsel, confronted with the circumstances of a defendant's trial, would engage in similar conduct. Id. at 481. ¶ 27 It is clear from the record that defendant's trial counsel's strategy was based on his understanding that the State's experts' reports were inconsistent. On the first day of defendant's trial, after cross-examination of one of the State's experts, defendant's trial counsel made an oral a motion to strike the testimony of two of the State's expert witnesses, a motion for directed verdict, and a request for a mistrial based on the State's failure to produce a DNA-related document in discovery and the inconsistency of one of the expert's testimony regarding her report and the number of loci tested. At the hearing on defendant's motion, defendant's trial counsel argued that:
"[DEFENDANT'S TRIAL COUNSEL]: [The State] talks about the tests were accurate. Well, under our theory of the case going in, we were not in there to attack the accuracy of each of the individual tests done because they were conflicting. I wanted them to say, yeah, oh, that's a good test, and oh, yes, this a good test. They don't match. There's not a consistency there because one has four and one has five. ***¶ 28 The State argued at the hearing that trial counsel had received discovery pertaining to the five loci tested. According to the State, trial counsel was provided four separate files of DNA lab notes and testing, including documents showing that testing was conducted on the fifth locus. The State noted that:
THE COURT: So what you're saying is the theory of defense that you pursued was based on the information that you had was one report had four, the other had five; that was going to be your inconsistency, if you will?
[DEFENDANT'S TRIAL COUNSEL]: Yes, sir.
THE COURT: And, therefore, you didn't cross-examine as to lab procedures and testing and how it's done and in an effort to—
[DEFENDANT'S TRIAL COUNSEL]: Number one, there was no reason to, because that was the inconsistency that was going to be argued.
Number two, I didn't want any problems to show up in either one of their analysis individually, because I wanted it to be inconsistent."
"[THE STATE]: It was in the lab notes that were produced last week, Judge. And prior to that, a long time prior to that, that shows that that was done. You know, you can't just read the—if you ask for the lab notes, you can't just read the reports, you have to look in and interpret it. He had an expert appointed to interpret things for him."¶ 29 Defendant had been appointed a DNA expert by the trial court who completed his DNA analysis in March 2001, prior to defendant's trial in December 2002. At the hearing on defendant's motions, defendant's trial counsel informed the trial court that:
"[DEFENDANT'S TRIAL COUNSEL]: This is the letter I received from [defendant's expert], who did the analysis on the reports that we had, and he states what reports he had. And you'll notice in the letter he states that he did not have any reports from [State's expert Ms. Olson] as to any of her analysis because we didn't have them then."¶ 30 The record on appeal demonstrates that defendant's trial counsel did receive additional discovery after March 2001. Specifically, the State filed supplemental answers to defendant's discovery requests on November 8, 2001, March 11, 2002, December 2, 2002, December 3, 2002, and December 5, 2002. Most notably, the State disclosed Ms. Olson as an additional witness and provided an additional forensic lab report in its disclosure on November 8, 2001. A counsel's strategic choices are required to be made after investigation of the law and facts. See People v. Ramsey, 239 Ill. 2d 342, 433 (2010). Defendant's trial counsel in this matter received additional discovery relating to the testing of the loci, yet the additional discovery was not provided to defendant's DNA expert. Trial counsel may well have had a valid strategic reason for not providing the additional discovery or requesting any additional input from defendant's DNA expert. We cannot, however, speculate whether the additional discovery may have altered the defendant's DNA expert's findings or changed trial counsel's strategy since any fact-finding or credibility determinations must be made at the evidentiary stage and requires the trial court to conduct an evidentiary hearing. Dupree, 2018 IL 122307, ¶ 29. ¶ 31 We must next address whether a reasonably effective counsel, confronted with the circumstances of defendant's trial, would engage in similar conduct. In People v. Watson, 2012 IL App (2d) 091328, ¶ 32, the court found that the trial counsel's performance fell below an objective standard of reasonableness where counsel's challenge to the DNA evidence was "virtually nonexistent, and quite possibly counsel simply did not understand the evidence." The Watson court also found prejudice under the Strickland analysis where "there was a basis to challenge the infallibility of the DNA evidence against the defendant, which was portrayed as a 'match,' but that argument and evidence was not developed." Id. ¶ 33. ¶ 32 In this matter, defendant's trial counsel did challenge the State's DNA evidence through cross-examination rather than challenging to the foundation at trial, but defendant is alleging that his trial counsel's strategy was based on a mistaken belief that no testing was conducted on the fifth locus. A defense attorney has a duty to advocate for his or her client's case and to use his or her skills and knowledge to render the trial a reliable adversarial process. Strickland, 466 U.S. at 688. "The constitutional guarantee of effective counsel contemplates that, to render the trial a reliable adversarial process, counsel will engage evidentiary rules to shield his or her client from a decision based on unreliable evidence." Watson, 2012 IL App (2d) 091328, ¶ 22. Sound trial strategy "embraces the use of established rules of evidence and procedure to avoid, when possible, the admission of incriminating statements, harmful opinions, and prejudicial facts." People v. Moore, 279 Ill. App. 3d 152, 159 (1996). ¶ 33 Defendant's trial counsel in this matter elected not to use the foundational rules of evidence to challenge the DNA evidence and expert opinion testimony. While we are not stating that a defendant's attorney must always challenge foundation and may not pursue another strategy, such strategy cannot be based upon a mistaken belief of the evidence. Where a strategy is based upon a misunderstanding of the evidence, counsel's performance falls below an objective standard of reasonableness under prevailing professional norms. See Watson, 2012 IL App (2d) 091328, ¶ 32. ¶ 34 Therefore, we find that defendant has overcome the presumption that trial counsel's failure to challenge the lack of foundation of the DNA evidence was the product of sound trial strategy and that no reasonably effective counsel, confronted with the circumstances of a defendant's trial, would engage in similar conduct. As such, defendant has satisfied the deficiency prong of the Strickland analysis. ¶ 35 We also find that defendant has satisfied the prejudice prong of the Strickland analysis. As this court noted in Taylor, the DNA evidence was the only direct evidence linking defendant to the criminal offenses. Taylor, 357 Ill. App. 3d at 220. As such, there is a reasonable probability that if the DNA foundation was properly challenged there may have been a basis to exclude the evidence and potentially raise reasonable doubt as to defendant's guilt. The State argues that defendant has not demonstrated any sufficient reason that the State could not cure any foundational defects, but again, this matter is on appeal from the dismissal of a postconviction petition at the second stage. That the State may have been able to provide cure any foundational defects is an issue outside of the record on appeal that must be developed through an evidentiary hearing and not adjudicated on the pleadings. See People v. Coleman, 183 Ill. 2d 366, 382 (1998). Therefore, defendant has met the second Strickland prong of prejudice. ¶ 36 Defendant's allegations his trial counsel's failure to challenge the foundation of the DNA evidence or expert opinion testimony was not sound trial strategy but based on a mistake of fact and a lack of investigation, and thus, fell below an objective standard of reasonableness under prevailing professional norms, is not refuted by the record. We further find that there is a reasonable probability that if the DNA foundation had been properly challenged, there may have been a basis to exclude the evidence and potentially raise reasonable doubt as to defendant's guilt. Therefore, defendant's claim of ineffective assistance of trial counsel has, at this stage, met both prongs of the Strickland analysis. ¶ 37 In this decision, we make no actual findings concerning trial counsel's strategy or performance at trial. This court, as with the lower, must take any allegations not affirmatively refuted by the record as true at the second stage of a postconviction proceeding. Hall, 217 Ill. 2d at 334. ¶ 38 Based on the above, an ineffective assistance of trial counsel claim would have avoided the operation of waiver and may have been meritorious on appeal. As such, defendant has made a substantial showing of a constitutional violation sufficient to warrant an evidentiary hearing concerning his claim of ineffective assistance of appellate counsel for failing to raise ineffective assistance of trial counsel for failure to challenge the foundation of the DNA evidence or expert opinion testimony. Therefore, we find that the trial court erred in dismissing defendant's amended petition without a third stage evidentiary hearing.
A locus (plural loci) in genetics, is a specific, fixed position on a chromosome where a particular gene or genetic marker is located. https://www.genome.gov/genetics-glossary/locus (last visited Apr. 19, 2021).
¶ 39 B. Sentence
¶ 40 Defendant raises a second issue within this appeal that his sentence of three consecutive 30-year terms of imprisonment, to run consecutively to the 55-year sentence he was serving at the time of his trial, exceeded the sum of the authorized maximum extended term for the two most serious felonies based on section 5-8-4(c)(2) of Unified Code of Corrections (730 ILCS 5/5-8-4(c)(2) (West 1994)). ¶ 41 Defendant did not raise any sentencing issues within his direct appeal. Defendant did raise several sentencing issues within his pro se and amended postconviction petitions; however, he did not raise the issue that his sentence exceeded the authorized maximum under section 5-8-4(c)(2). As such, defendant raises this issue for the first time within this appeal. ¶ 42 The State argues that the defendant has forfeited this issue because he failed to raise it in his direct appeal, pro se petition, or amended petition. Generally, it is the rule that issues that could have been raised on appeal, but were not, are considered forfeited. People v. Towns, 182 Ill. 2d 491, 502 (1998). It is also true that any claim that is not included in the original or an amended petition is forfeited. People v. Pendleton, 223 Ill. 2d 458, 475 (2006). ¶ 43 Defendant argues that, although his petitions did not flesh out this sentencing claim in detail or survey all the relevant law, it did state sufficient facts to merit a hearing on the matter. Defendant further argues that defendant's sentencing claim is best developed and addressed at an evidentiary hearing. We disagree. ¶ 44 This court does not enjoy the supervisory authority of our supreme court. People v. Jones, 213 Ill. 2d 498, 507 (2004). As such, this court is not free to excuse, in the context of postconviction proceedings, an appellate waiver caused by the failure of a defendant to include an issue in his or her postconviction petition. "When appellate counsel discover[s] errors not raised by their clients during the summary, first-stage postconviction proceedings, the proper course of action for counsel to take is to file a successive petition in which the newly found claim is properly alleged." Id. at 509. As such, the proper course of action on defendant's sentencing claim would have been the filing of a successive petition if the claim could meet the strictures of the "cause and prejudice test." Id. at 508. ¶ 45 Therefore, we find that defendant has forfeited his claim that his sentence exceeded the sum of the authorized maximum extended term for the two most serious felonies based on section 5-8-4(c)(2) for failing to raise it within his direct appeal, pro se petition, or amended petition.
The "cause and prejudice" test is the analytical tool used to determine whether fundamental fairness requires that an exception be made to section 122-3 of the Act so that a claim raised in a successive petition may be considered on its merits. People v. Jones, 211 Ill. 2d 140, 148-49 (2004). A "defendant must demonstrate 'cause' for failing to raise the error in prior proceedings and actual 'prejudice' resulting from the claimed error." Id. at 149. --------
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, we reverse the order of the trial court dismissing defendant's amended petition at the second stage where defendant made a substantial showing of ineffective assistance of appellate counsel and remand for a third stage evidentiary hearing. ¶ 48 Reversed and remanded.