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                              Appellate Court                           Date: 2018.07.10
                                                                        09:40:44 -05'00'




                  People v. Munson, 2018 IL App (3d) 150544



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           MICHAEL E. MUNSON, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0544



Filed             March 27, 2018



Decision Under    Appeal from the Circuit Court of La Salle County, No. 02-CF-272; the
Review            Hon. Cynthia M. Raccuglia, Judge, presiding.



Judgment          Vacated and remanded with directions.


Counsel on        Michael J. Pelletier, Peter A. Carusona, and Sean Conley, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  Karen Donnelly, State’s Attorney, of Ottawa (Patrick Delfino,
                  Lawrence M. Bauer, and Gary F. Gnidovec, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE McDADE delivered the judgment of the court, with
                  opinion.
                  Justices Lytton and O’Brien concurred in the judgment and opinion.
                                             OPINION

¶1       Defendant, Michael E. Munson, appeals from the circuit court’s dismissal of his motion for
     leave to file a successive postconviction petition. Defendant argues that the court erred because
     it impermissibly allowed the State to provide input on his motion for leave. We vacate and
     remand with directions.

¶2                                               FACTS
¶3        Defendant was convicted of unlawful possession of a controlled substance with intent to
     deliver (720 ILCS 570/401(a)(2)(D) (West 2002)) and sentenced to 40 years’ imprisonment.
     On direct appeal, we affirmed defendant’s conviction and sentence. People v. Munson,
     No. 3-04-0703 (2007) (unpublished order under Illinois Supreme Court Rule 23). On May 30,
     2008, defendant filed a postconviction petition alleging ineffective assistance of appellate
     counsel. Following a third-stage evidentiary hearing, the circuit court denied defendant’s
     petition. We affirmed the denial on appeal. People v. Munson, No. 3-08-0803 (2011)
     (unpublished order under Illinois Supreme Court Rule 23). Between January and June 2013,
     defendant filed two petitions for relief from judgment under section 2-1401 of the Code of
     Civil Procedure (735 ILCS 5/2-1401 (West 2012)) and a complaint for mandamus relief. The
     circuit court dismissed each of these filings. On appeal, we affirmed the circuit court’s
     dismissals. People v. Munson, No. 3-13-0367 (2016) (unpublished summary order under
     Illinois Supreme Court Rule 23(c)).
¶4        On August 4, 2014, defendant filed a motion for leave to file a successive postconviction
     petition. Defendant alleged the following cause for filing a successive petition: he
     inadvertently discovered new information when he sought information about his seized
     firearms in a Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)) request
     to the Illinois State Police. Through the request, defendant learned that the State had failed to
     disclose evidence of a laboratory test on inositol—a vitamin B compound that defendant
     alleged was used to cut cocaine. Defendant alleged that he suffered prejudice as a result of the
     undisclosed evidence because it could have been used to impeach a witness for the
     prosecution. The State filed a motion to dismiss defendant’s petition.
¶5        At the hearing on the State’s motion to dismiss, the State argued that defendant had failed
     to show the cause and prejudice required to bring a successive petition. Defendant argued that
     he was unable to bring his claim in a prior proceeding because he discovered the results of the
     laboratory test after he filed an unrelated FOIA claim. Defendant argued he suffered prejudice
     from the State’s failure to disclose the evidence because the defense likely could have used the
     evidence to obtain a different result at trial. The court granted the State’s motion to dismiss,
     finding that defendant had not shown the requisite prejudice to receive leave to file a
     successive postconviction petition. Defendant appeals.

¶6                                          ANALYSIS
¶7       Defendant argues that the circuit court erred when it allowed the State to respond to
     defendant’s motion for leave and to make arguments against the motion. Defendant
     specifically argues the Post-Conviction Hearing Act (Act) prohibits the State from
     participating in the postconviction proceedings until the petition is advanced to the second


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       stage. See 725 ILCS 5/122-5 (West 2014). Therefore, defendant contends the cause should be
       remanded for the circuit court to consider his motion for leave to file a successive
       postconviction petition without input from the State.
¶8          In October 2017, the supreme court addressed this issue in People v. Bailey, 2017 IL
       121450. In Bailey, the supreme court determined “it is premature and improper for the State to
       provide input to the court before the court has granted a defendant’s motion for leave to file a
       successive petition.” Id. ¶ 20. That is, it is improper for the circuit court to allow and consider
       the State’s objection to defendant’s motion for leave to file a successive postconviction
       petition. Id. Instead, the court must conduct an independent inquiry, without input from the
       State, into whether defendant should be granted leave to file a successive postconviction
       petition. Id. Applying Bailey to this case, we find the circuit court erred when it allowed the
       State to provide input on defendant’s motion for leave.
¶9          Having found error, we must determine the proper relief. In Bailey, the supreme court
       acknowledged defendant’s request to remand the matter for new proceedings before a new
       judge. Id. ¶ 41. However, the supreme court declined to remand the matter under the
       circumstances and, instead, conducted a de novo review of whether defendant had satisfied the
       cause and prejudice test. Id. ¶ 42. The court concluded that defendant had not satisfied the test
       and affirmed the circuit court’s denial of leave to file a successive postconviction petition. Id.
       ¶¶ 42-45.
¶ 10        Unlike the supreme court, we do not have broad supervisory authority. People v. Whitfield,
       228 Ill. 2d 502, 520-21 (2007). Instead, we are authorized to “(1) reverse, affirm, or modify the
       judgment or order from which the appeal is taken; (2) set aside, affirm, or modify any or all of
       the proceedings subsequent to or dependent upon the judgment or order from which the appeal
       is taken; (3) reduce the degree of the offense of which the appellant was convicted; (4) reduce
       the punishment imposed by the trial court; or (5) order a new trial.” Ill. S. Ct. R. 615(b).
       Notably, Illinois Supreme Court Rule 615 does not provide the appellate court with the power
       to conduct a de novo hearing on defendant’s motion for leave to file a successive
       postconviction petition. This is consistent with the Act, which expressly contemplates the
       filing of the petition in the “trial court.” 725 ILCS 5/122-1 (West 2014). Therefore, we do not
       have the power under Rule 615 or the Act to conduct a de novo review of defendant’s motion
       for leave.

¶ 11                                          CONCLUSION
¶ 12       The order of the circuit court of La Salle County that dismissed defendant’s motion for
       leave to file a successive postconviction petition is vacated. The cause is remanded with
       directions for the court to consider defendant’s motion without input from the State.

¶ 13      Vacated and remanded with directions.




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