Opinion
3-11-0824
03-04-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMY E. THOMPSON, a/k/a JIMMIE ERNEST THOMPSON, 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 the Circuit Court
of the 10th Judicial Circuit,
Peoria County, Illinois,
Appeal No. 3-11-0824
Circuit No. 02-CF-638
Honorable
Stephen A. Kouri,
Judge, Presiding.
JUSTICE O'BRIEN delivered the judgment of the court.
Justices Lytton and McDade concurred in the judgment.
ORDER
¶ 1 Held: The trial court erred when it treated defendant's second postconviction petition as successive, where his first petition was used to reinstate his direct appeal. ¶ 2 Defendant, Jimmy E. Thompson, was convicted of armed robbery. 720 ILCS 5/18-2(a)(2) (West 2002). He filed a pro se postconviction petition, and during pendency of the proceedings on the petition, he was granted leave to file a late notice of appeal. No further action was taken on the petition. Following affirmance of his conviction and sentence on direct appeal, defendant filed a second pro se postconviction petition labeled as successive and accompanied by a motion for leave to file a successive petition. The trial court denied defendant leave to file the petition. Defendant appeals, arguing that the trial court erred when it treated his second petition as successive and denied him leave to file. We vacate and remand.
¶ 3 FACTS
¶ 4 On July 23, 2002, defendant was charged by indictment with armed robbery (720 ILCS 5/18-2(a)(2) (West 2002)). The cause proceeded to a jury trial, where defendant was ultimately found guilty. On March 20, 2003, the trial court sentenced defendant to 30 years' imprisonment. ¶ 5 On June 6, 2003, defense counsel filed a motion to reduce sentence, which the trial court denied the same day. The court directed the clerk to file a notice of appeal, which was filed on June 11, 2003. Thereafter, appellate counsel filed four extensions of time in which to file a brief. On May 12, 2004, over defendant's objection, this court dismissed the appeal upon a motion of the appellate defender stating that the notice of appeal was not timely. ¶ 6 In February 2005, defendant filed a pro se postconviction petition alleging a number of claims, including that he was denied his constitutional right to a direct appeal due to ineffective assistance of counsel. The trial court summarily dismissed defendant's petition as frivolous and patently without merit, and defendant appealed. On May 9, 2007, this court reversed and remanded for further proceedings, finding that defendant's petition was erroneously dismissed at the first stage because counsel's ineffectiveness in failing to perfect an appeal constituted a substantial constitutional violation. People v. Thompson, No. 3-05-0205 (2007) (unpublished order under Supreme Court Rule 23). Defendant was appointed postconviction counsel on remand. Id. ¶ 7 On September 28, 2007, the trial court held a hearing on defendant's pro se petition and instructed postconviction counsel to file a Rule 651(c) certificate and any amendments to the petition. Counsel obtained several extensions of time. On February 29, 2008, defendant sent a letter to the court claiming that postconviction counsel had never consulted with him and he would like to file an amended petition along with the right to file a late notice of appeal. ¶ 8 On July 11, 2008, while defendant's petition remained pending, counsel filed a motion for leave to file late notice of appeal. Counsel alleged that People v. Ross, 229 Ill. 2d 255 (2008), filed June 5, 2008, authorized the trial court to grant a late notice of appeal as relief pursuant to the Post-Conviction Hearing Act (the Act). See 725 ILCS 5/122-6 (West 2010). On July 29, 2008, defendant sent a letter to the court stating that he wanted a direct appeal and asked the court to order postconviction counsel to file an amended petition without any more delays. Counsel argued its motion for leave to file at the September 12, 2008, status hearing on defendant's postconviction petition. On September 15, 2008, the trial court granted defendant's motion to file late notice of appeal, and no further proceedings were held on defendant's petition. ¶ 9 On direct appeal, defendant argued that: (1) he was denied a speedy trial; (2) he did not knowingly and voluntarily waive his right to testify; (3) he revoked his waiver of counsel during posttrial proceedings; and (4) the trial court failed to inquire into his pro se claims of ineffective assistance of counsel. On June 29, 2010, this court affirmed defendant's conviction and sentence. People v. Thompson, No. 3-08-0763 (2010) (unpublished order under Supreme Court Rule 23). Defendant's petition for leave to appeal was denied on November 24, 2010. ¶ 10 On April 13, 2011, defendant filed a second pro se postconviction petition labeled as successive and accompanied by a motion for leave to file a successive petition. In the petition, defendant claimed, in part, that: (1) postconviction counsel was ineffective for not amending his pro se petition or addressing all of the claims in the petition at the postconviction proceeding; (2) he was not competent to waive his right to trial counsel; and (3) appellate counsel was ineffective. On June 29, 2011, defendant filed a motion to supplement his successive postconviction petition with his speedy trial claim. ¶ 11 On July 7, 2011, the trial court denied defendant leave to file a successive petition. The court found that defendant failed to establish prejudice as required by section 122-1(f) of the Act because his initial petition was allowed to proceed. 725 ILCS 5/122-1(f) (West 2010). Additionally, defendant was allowed a direct appeal and virtually all matters raised in the petition were raised therein. The court further found that the petition was frivolous because the petition set forth claims that were either previously asserted or not recently discovered. Defendant appeals.
¶ 12 ANALYSIS
¶ 13 Defendant argues that this cause should be remanded for second-stage proceedings. Specifically, defendant claims that the trial court never made a final ruling on his February 2005 postconviction petition after granting leave to file a direct appeal; therefore, his subsequent petition should not be treated as a successive petition, but as either an amendment to his February 2005 petition or as a new petition. ¶ 14 The Act provides a means by which criminal defendants can collaterally attack their convictions and sentences based on a substantial violation of their constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2010); People v. Beaman, 229 Ill. 2d 56 (2008). A postconviction proceeding contains three stages. Beaman, 229 Ill. 2d 56. At the first stage, the trial court independently assesses a defendant's petition, within 90 days of its filing, and if the court determines that the petition is "frivolous or is patently without merit," the court must summarily dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2010). If the petition is not dismissed at the first stage, it advances to the second stage, where the court may appoint counsel for an indigent defendant, counsel may amend the petition, and the State may move to dismiss the petition. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2010). ¶ 15 The Act contemplates the filing of only one postconviction petition. 725 ILCS 5/122-1(f) (West 2010); People v. Edwards, 2012 IL 111711. Under section 122-1(f), a defendant seeking to file a successive petition must obtain leave of the court, which will only be granted if defendant satisfies the cause and prejudice test. 725 ILCS 5/122-1(f) (West 2010). We review the denial of leave to file a successive postconviction petition and issues of statutory construction de novo. People v. Tidwell, 236 Ill. 2d 150 (2010); People v. Williams, 394 Ill. App. 3d 236 (2009). ¶ 16 In this case, defendant's February 2005 petition advanced to a second-stage hearing, during which he was granted leave to file a direct appeal, but his other claims were not addressed by the trial court. Defendant's April 2011 petition was treated as a successive petition, and the court denied defendant leave to file his petition. The issue presented on appeal is whether defendant's April 2011 petition should have been treated as a successive petition under the Act. Defendant contends that due to the court's failure to rule on the remaining claims in his February 2005 petition, the petition remains pending at the second stage. Thus, defendant argues the instant petition should be treated as an amendment to his February 2005 petition. ¶ 17 Alternatively, defendant argues that if we determine that the initial postconviction proceedings concluded when defendant was granted relief in the form of leave to file late notice of appeal, the instant petition should be treated as his first petition under the Act. Defendant relies on the recent decision of People v. Little, 2012 IL App (5th) 100547, which held that when a defendant files a postconviction petition seeking only to reinstate the right to a direct appeal that was lost due to counsel's ineffectiveness, a subsequent postconviction petition is not considered successive under the Act. ¶ 18 Based on our review of the postconviction proceeding, we find that defendant's April 2011 petition should not have been treated as a successive petition. Despite defendant labeling his April 2011 petition as successive, it was in essence an amendment to his first postconviction petition. Cf. Little, 2012 IL App (5th) 100547 (holding that defendant's second petition was not successive where his initial petition solely asserted his right to a direct appeal). The Act affords every imprisoned defendant one complete opportunity to collaterally attack his conviction and sentence. Little, 2012 IL App (5th) 100547. Here, defendant raised multiple claims in his first petition. However, other than his claim regarding his right to a direct appeal, they were never argued by counsel, despite defendant's letters to the court requesting such, or denied by the trial court. Postconviction counsel and the trial court treated defendant's February 2005 petition solely as a vehicle to reinstate his right to a direct appeal, and defendant was deprived of an opportunity to show a substantial denial of his constitutional rights. Cf. Little, 2012 IL App (5th) 100547. ¶ 19 The trial court denied defendant leave to file his April 2011 petition, noting that the petition did not satisfy the cause and prejudice requirements for successive petitions and set forth claims that were previously asserted or not recently discovered. See 725 ILCS 5/122-1(f) (West 2010). The trial court overlooked the fact that the majority of the claims defendant raised in his initial petition were never ruled on, and that he also raised new claims of postconviction and appellate counsels' ineffectiveness. Thus, defendant should not have had to satisfy the cause and prejudice test in order to file his April 2011 petition, as he did not receive a true collateral attack at his first postconviction proceeding. See People v. McDonald, 364 Ill. App. 3d 390 (2006) (noting that the cause and prejudice test is a policy used to narrow the window of opportunity to present successive petitions because defendant has already been afforded an opportunity to raise such claims in his first petition). Accordingly, defendant's motion for leave to file a successive petition should have been treated as an amendment to his initial petition; therefore, we remand for further proceedings.
¶ 20 CONCLUSION
¶ 21 For the foregoing reasons, the judgment of the circuit court of Peoria County is vacated, and the cause is remanded for further proceedings. ¶ 22 Vacated and remanded.