                                            2018 IL App (3d) 150544

                                  Opinion filed March 27, 2018
       _____________________________________________________________________________

                                                     IN THE

                                     APPELLATE COURT OF ILLINOIS

                                               THIRD DISTRICT

                                                      2018

       THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
       ILLINOIS,                                         )       of the 13th Judicial Circuit,
                                                         )       La Salle County, Illinois,
              Plaintiff-Appellee,                        )
                                                         )       Appeal No. 3-15-0544
              v. 	                                       )       Circuit No. 02-CF-272

                                                         )

       MICHAEL E. MUNSON,                                )       Honorable

                                                         )       Cynthia M. Raccuglia,
              Defendant-Appellant.                       )       Judge, Presiding.
       _____________________________________________________________________________

             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     0703 (2007) (unpublished order under Illinois Supreme Court Rule 23).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


                                                      2

     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 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,


                                                       3

       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.




                                                         4

