                                           2019 IL App (3d) 160603

                                Opinion filed March 21, 2019
     _____________________________________________________________________________

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                              THIRD DISTRICT

                                                      2019

     THE PEOPLE OF THE STATE OF                         )       Appeal from the Circuit Court
     ILLINOIS,                                          )       of the 21st Judicial Circuit,
                                                        )       Kankakee County, Illinois,
             Plaintiff-Appellee,                        )
                                                        )       Appeal No. 3-16-0603
             v.                                         )       Circuit No. 89-CF-739
                                                        )
     BERNON L. HOWERY,                                  )       Honorable
                                                        )       James B. Kinzer,
             Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE McDADE delivered the judgment of the court, with opinion.
           Presiding Justice Schmidt and Justice Lytton concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                   OPINION

¶1          Defendant, Bernon L. Howery, appeals the denial of his pro se motion for leave to file a

     successive postconviction petition and motion for discovery. We affirm.

¶2                                            I. BACKGROUND

¶3          Defendant is currently serving a sentence of life imprisonment after a jury found him

     guilty of four counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)(2)), four counts

     of felony murder (id. ¶ 9-1(a)(3)), and one count of aggravated arson (id. ¶ 20-1.1). The evidence

     presented at trial was exhaustively reviewed in defendant’s direct appeal. People v. Howery, 178

     Ill. 2d 1 (1997). For clarity, we will discuss only the facts relevant to the instant appeal.
¶4          On December 9, 1989, a fire occurred at the home of defendant’s ex-girlfriend, Linda

     Walls. The fire killed Walls’s four children (defendant was the father of three of the children).

¶5          At trial, the State presented expert witness John DeHann, a criminalist for the California

     Department of Justice Bureau of Forensic Services in Sacramento. Id. at 21. DeHann testified as

     to the cause and origin of the fire. Id. He investigated the scene of the fire shortly after the

     incident and explained that two separate fires occurred in the house. Id. One fire occurred in a

     pile of clothing in the basement, while the other fire occurred underneath the stairwell on the first

     floor of the house. Id. DeHann stated that the first-floor fire and the basement fire were two

     separate fires. Id. He ruled out accidental causes of the fires. Id. at 22. DeHann opined that the

     first-floor fire was deliberately started by a direct flame ignition due to the quick progression of

     the fire and the absence of an accidental basis for the fire. Id. DeHann further stated that the

     existence of two separate and unrelated fires in the home also led him to believe that the fires

     were deliberately started by someone. Id.

¶6          In defendant’s case-in-chief, he presented his own expert witness, Charles Neuf. Id. at 25.

     Neuf, an expert in forensic science, investigated the crime scene approximately 11 months after

     the fire. Id. Neuf believed that the fires on the first floor and in the basement were related. Id.

     Disagreeing with DeHann, Neuf opined that the first-floor fire caused the fire in the basement.

     Id. Neuf did not have an opinion as to the cause of the fire on the first floor. Id.

¶7          While serving his sentence, defendant appealed his convictions and sentence and initiated

     several collateral proceedings, which are not relevant to this appeal. People v. Howery, No. 3-05-

     0674 (2007) (unpublished order under Illinois Supreme Court Rule 23); People v. Howery, 2011

     IL App (3d) 090650-U. Relevant to this appeal is defendant’s pro se motion for leave to file a

     successive postconviction petition. Defendant’s motion alleged that new developments in the


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       field of fire and arson forensic science constituted new evidence of his actual innocence.

       Defendant failed to bring this claim in his previous postconviction petition because the new

       developments in fire and arson forensic science did not exist at the time he filed his first

       postconviction petition. Defendant believed that the new developments demonstrated that the

       State’s expert witness’s opinion at trial was based on misleading and antiquated beliefs about fire

       technology.

¶8             Defendant attached a proposed pro se successive postconviction petition to his motion for

       leave. 1 The proposed successive petition repeated defendant’s claim that new developments

       demonstrated that the expert testimony as to the cause of the fire was based on misleading and

       antiquated beliefs that were now proven unreliable. Defendant’s pro se successive postconviction

       petition did not identify which portion of the State’s forensic expert’s testimony he believed was

       now unreliable. Defendant did not explain how fire science had changed or how those changes

       would have affected the outcome in his case. Defendant also did not explain how the changes in

       fire and arson technology demonstrated his innocence.

¶9             After review, the circuit court found that defendant’s pro se motion for leave and the

       proposed successive postconviction petition failed to allege any prejudice. The court also found

       that defendant failed to allege that he was actually innocent. The court concluded that

       defendant’s pleadings were nothing more than a request for a court-ordered fishing expedition.

       The court denied defendant leave to file his successive postconviction petition.

¶ 10           Next, defendant filed a motion to reconsider. The motion again argued that changes in

       fire science supported his actual innocence claim. Defendant then asserted that the State should


               1
                Defendant raised other claims in his proposed successive postconviction petition. However,
       defendant does not make any argument that these claims have merit in this appeal. We will not address
       the points not argued by defendant on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).
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       be ordered to provide defendant with evidence regarding the new developments in fire science,

       including a copy of NFPA 921: Guide for Fire and Explosion Investigations (Nat. Fire Protection

       Ass’n 2017 ed.) (NFPA 921). Defendant also filed a free-standing motion for discovery,

       requesting a copy of NFPA 921. 2 Defendant asserted that he was unsuccessful in obtaining the

       discovery on his own. Defendant claimed that the publication was essential to his actual

       innocence claim. According to defendant, “NFPA 921’s explanations of non-arson causes for

       multiple non-communicating fires can probably make sense of the two fires in the instant case,

       eliminating defendant as the arsonist, and proving defendant is an innocent man.”

¶ 11           Ultimately, the circuit court denied defendant’s motion to reconsider. The court also

       denied defendant’s free-standing motion for discovery on the basis that defendant failed to

       provide any legal authority to support the motion.

¶ 12                                               II. ANALYSIS

¶ 13           For clarity, we note that defendant frames his argument on appeal by claiming that the

       circuit court erred in denying his pro se motion for leave to file a successive postconviction

       petition and his free-standing motion for discovery. However, defendant does not ask this court

       to reverse the denial of his motion for leave to file a successive postconviction petition. Instead,

       defendant asks for the cause to be remanded “for the limited purpose of allowing the trial court

       to exercise its discretion on defendant’s discovery request and for such further proceedings as

       may be warranted.” While defendant condenses the court’s rulings on each motion into a single

       argument, we discuss each motion (for leave to file a successive postconviction petition and for

       discovery) separately.


               2
                Defendant’s motion to reconsider and motion for discovery also raised other issues which are not
       challenged on appeal. Therefore, we do not address those contentions. See Ill. S. Ct. R. 341(h)(7) (eff.
       Nov. 1, 2017).
                                                          4
¶ 14          First, defendant contends that the circuit court should have allowed him leave to file a

       successive postconviction petition because his allegations sufficiently alleged a colorable claim

       of actual innocence. Alternatively, defendant contends that his motion for leave to file a

       successive postconviction petition sufficiently alleged cause and prejudice. Specifically,

       defendant contends that developments in fire and arson forensic science after his trial call into

       question the reliability of the State’s forensic expert’s testimony as to the cause of the fire.

¶ 15          Initially, we note that defendant’s entire argument on this issue is based on NFPA 921.

       That publication was not included in either defendant’s motion for leave to file a successive

       postconviction petition or his proposed successive postconviction petition. In fact, defendant did

       not reference NFPA 921 at all in his argument. As he did not include this information in his

       proposed successive postconviction petition, it is not properly before this court. People v.

       Anderson, 375 Ill. App. 3d 121, 139 (2006) (appellate court cannot consider evidence “for the

       first time on appeal without it first being attached to defendant’s postconviction petition for

       initial scrutiny and evaluation at the trial court level”). Based on the record before us, we find

       defendant’s unsupported claim fails to meet either standard a defendant is required to meet to

       obtain leave to file a successive postconviction petition.

¶ 16          There are two ways a defendant may obtain leave of court to file a successive

       postconviction petition. First, a defendant must establish cause and prejudice for the failure to

       raise the claim earlier. People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). Or, second, defendant

       must show actual innocence. Id. Under either standard, a defendant not only has the burden to

       obtain leave of court, but also “must submit enough in the way of documentation to allow a

       circuit court to make that determination.” People v. Tidwell, 236 Ill. 2d 150, 161 (2010).




                                                          5
¶ 17          Here, defendant’s claim failed to identify the evidence that he believed was unreliable,

       how fire and arson forensic science had changed since his trial, how the new developments

       affected the fairness of his trial, or how these developments demonstrated his innocence.

       Defendant’s claim also lacked any documentary support. At best, defendant merely speculated

       that possible changes in fire and arson forensic science may have affected the outcome in his

       case. Defendant, therefore, failed to satisfy the cause and prejudice standard and the actual

       innocence standard. Thus, the circuit court did not err when it denied defendant’s motion for

       leave to file a successive postconviction petition.

¶ 18          Having found that the court did not err when it denied defendant leave to file a successive

       postconviction petition, we turn to defendant’s argument that the court erred in denying his free-

       standing motion for discovery. In the motion, defendant sought to obtain NFPA 921 (which

       defendant’s appellate counsel has now obtained and discussed at length in his appellate brief),

       which he claimed was essential to his successive postconviction argument. Defendant contends

       that the court erred when it denied the motion for discovery based on defendant’s failure to

       provide statutory authority allowing discovery. Therefore, defendant asks this court to remand

       the matter to exercise its discretion and rule on the motion. Because defendant filed his motion

       for discovery after the circuit court denied defendant leave to file a successive postconviction

       petition, we find the discovery request was untimely.

¶ 19          Both parties agree that the circuit court has inherent authority to order discovery in

       postconviction proceedings following a hearing for “good cause shown.” People ex rel. Daley v.

       Fitzgerald, 123 Ill. 2d 175, 183 (1988); People v. Fair, 193 Ill. 2d 256, 264-65 (2000). For

       example, it is clear that postconviction discovery is allowed while a postconviction petition

       remains pending. See People v. Pinkston, 2013 IL App (4th) 111147, ¶ 18. The instant case,


                                                         6
       however, is unique in that the request for discovery occurred after the circuit court denied

       defendant’s motion for leave to file a successive postconviction petition. After an exhaustive

       review of the law, we were unable to find any published decision that addresses the unique

       procedural posture in this case. Nevertheless, under the present circumstances, we find that the

       court did not err when it denied defendant’s discovery motion.

¶ 20          Once a motion for leave to file a successive postconviction petition is denied, a defendant

       can either file a motion to reconsider or challenge the denial on appeal. People v. Blair, 215 Ill.

       2d 427, 451 (2005). A motion for discovery is neither. “The purpose of a motion to reconsider is

       to bring to the court’s attention (1) newly discovered evidence that was not available at the time

       of the first hearing, (2) changes in the law, or (3) errors in the court’s application of existing

       law.” People v. Teran, 376 Ill. App. 3d 1, 4-5 (2007) (citing Merchants Bank v. Roberts, 292 Ill.

       App. 3d 925, 929 (1997)). Likewise, an appeal is meant to challenge matters addressed below,

       and a party is generally barred from raising new issues on appeal. See Ill. S. Ct. R. 615(a).

¶ 21          Here, defendant’s belated request for discovery was procedurally improper. Defendant’s

       motion sought to obtain evidence that he speculated may support his successive postconviction

       claims. Simply put, this is not the purpose of a motion to reconsider. Moreover, the information

       defendant requested was not newly discovered, as he was aware of the materials he sought at the

       time he filed his motion for leave to file a successive postconviction petition. See generally

       People v. English, 2014 IL App (1st) 102732-B, ¶ 49 (noting that evidence is not considered

       newly discovered “if it presents facts already known to the defendant, even if the source of those

       facts was unknown, unavailable or uncooperative”). Accordingly, we find no basis for the circuit

       court to consider defendant’s motion for discovery.




                                                          7
¶ 22           Even if we were to find that the circuit court had discretion to rule on defendant’s belated

       discovery motion, we find that remand is unnecessary in this case. Defendant’s appellate counsel

       is in possession of NFPA 921, as he has thoroughly reviewed its contents in his appellate brief.

       Defendant’s appellate counsel can provide defendant with this information. Should defendant

       choose to file a new motion for leave to file a successive postconviction petition, he can

       incorporate NFPA 921 into his pleadings.

¶ 23           In reaching our conclusion, we reject defendant’s reliance on Pinkston, 2013 IL App

       (4th) 111147, for the proposition that this court should remand the matter for the limited purpose

       of allowing the court to consider the merits of his motion for discovery. In Pinkston, defendant

       filed a pro se postconviction petition. Id. ¶ 1. While the postconviction proceedings were still

       ongoing, defendant filed a motion for discovery seeking exculpatory evidence. Id. ¶ 6. The

       circuit court denied the motion for discovery based on its belief that postconviction discovery

       was not allowed. Id. ¶ 7. The appellate court disagreed, noting that the circuit court had the

       inherent authority to allow postconviction discovery. Id. ¶ 13. The appellate court also noted that

       the circuit court committed error by refusing to exercise its discretion due to the court’s mistaken

       belief that it lacked such discretion. Id. ¶ 14. Therefore, the appellate court remanded the cause to

       allow the circuit court to exercise its discretion regarding defendant’s motion for discovery. Id.

       ¶ 20.

¶ 24           Unlike the defendant in Pinkston, defendant here requested discovery after the circuit

       court denied his motion for leave to file a successive postconviction petition. This procedural

       distinction is significant. As noted above (supra ¶ 19), the proceedings in this case were

       completed prior to the filing of the motion for discovery. Discovery at this stage of the

       proceedings would not affect the court’s denial of defendant’s request for leave to file a


                                                        8
       successive postconviction petition. Defendant in Pinkston, by contrast, filed his motion for

       discovery while his pro se postconviction petition remained pending. See 725 ILCS 5/122-5

       (West 2016). In other words, the circuit court in Pinkston had not yet made a determination on

       defendant’s postconviction petition.

¶ 25                                          III. CONCLUSION

¶ 26          The judgment of the circuit court of Kankakee County is affirmed.

¶ 27          Affirmed.




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