                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                                People v. Evans, 2013 IL 113471




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GEORGE
Court:                     EVANS, Appellant.



Docket No.                 113471


Filed                      February 22, 2013
Rehearing denied           May 28, 2013


Held                       Where statute provides that, by operation of law, every Class X sentence
(Note: This syllabus       includes as though written therein a three-year term of mandatory
constitutes no part of     supervised release, or MSR, and where an offender who was convicted
the opinion of the court   of aggravated battery with a firearm claimed that he had not known about
but has been prepared      MSR until after the denial of his initial postconviction petition, he did not
by the Reporter of         assert the “cause” element of the cause and prejudice test for when leave
Decisions for the          to file a successive postconviction petition may be granted; but the
convenience of the         legislature was invited to enact a more complete statutory framework for
reader.)                   successive postconviction petitions.


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. James
                           Michael Obbish, Judge, presiding.


Judgment                   Affirmed.
Counsel on               Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal                   Defender, and Patrick F. Cassidy, Assistant Appellate Defender, of the
                         Office of the State Appellate Defender, of Chicago, for appellant.

                         Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
                         State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz and Sari
                         London, Assistant State’s Attorneys, of counsel), for the People.


Justices                 JUSTICE THOMAS delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, and
                         Theis concurred in the judgment and opinion.
                         Justice Burke dissented, with opinion.



                                           OPINION

¶1        The issue in this case is whether the circuit court of Cook County erred in denying
      defendant George Evans’ pro se motion for leave to file a successive petition for relief under
      the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). We conclude
      that it did not.

¶2                                       BACKGROUND
¶3         In March 2005, defendant was found guilty of aggravated battery with a firearm (720
      ILCS 5/12-4.2(a)(1) (West 2004)) and sentenced to 12 years in prison. Defendant’s
      conviction and sentence were affirmed on direct appeal. People v. Evans, No. 1-05-0850
      (2007) (unpublished order under Supreme Court Rule 23).
¶4         In February 2008, defendant filed a pro se postconviction petition, which the trial court
      summarily dismissed. The appellate court affirmed that dismissal in an unpublished order
      entered pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). People v. Evans, No. 1-08-
      1338 (2009) (unpublished order under Supreme Court Rule 23).
¶5         In December 2009, defendant filed a pro se motion for leave to file a successive
      postconviction petition. See 725 ILCS 5/122-1(f) (West 2008). In it, he alleged that, when
      it imposed defendant’s 12-year prison sentence, the trial court neither mentioned nor imposed
      an additional term of mandatory supervised release (MSR). Nevertheless, defendant has since
      learned that he will be required to serve a three-year term of MSR following his release from
      prison. According to defendant, enforcement of a three-year MSR term following his release
      from prison would violate his due process rights because the total time he would be required
      to serve (15 years) would exceed the term specifically announced by the trial court (12 years).
      According to the motion, defendant did not include this claim in his initial postconviction

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       petition because:
                 “The information about the M.S.R. was not yet discovered to me yet. And when I did
                 learn about it more research need to be done. Also it was still being decided in
                 appeals court, so no case were able to be used as evidence. Basically I Petitioner just
                 discovered this.”
       Defendant further alleged that he would suffer prejudice if he were unable to assert this claim
       because, in violation of his due process rights, he was being made “to serve more time than
       the judge imposed.” The trial court denied defendant’s request for leave to file the successive
       petition, noting that defendant was “ignoring the fact that this was not something that he had
       bargained for.” Rather, it was “a sentence after a trial and conviction and mandatory
       supervised release term is not something the Court has any control over.”
¶6          Defendant appealed, arguing that his motion for leave to file the successive petition
       should have been granted because it stated the “gist” of a claim for cause and prejudice—that
       is, it stated “an arguable claim” of cause and prejudice. In support, defendant cited People
       v. LaPointe, 365 Ill. App. 3d 914 (2006), aff’d on other grounds, People v. LaPointe, 227
       Ill. 2d 39 (2007). In LaPointe, a panel of our appellate court held that, because “[a] motion
       under section 122-1(f) precedes the preliminary-review stage and thus, like the petition itself,
       will ordinarily be drafted by a lay person with limited legal skills,” it “need state only the gist
       of a meritorious claim of cause and prejudice.” Id. at 924.
¶7          The appellate court below rejected defendant’s argument for two reasons. First, the court
       noted that, in People v. Conick, 232 Ill. 2d 132, 142 (2008), this court stated, albeit in a
       different context, that the cause and prejudice standard is “more exacting” than the simple
       “gist” standard. According to the appellate court, “[t]he reasonable inference to be drawn
       from that statement is that the ‘gist’ standard applicable to first-stage petitions is, contrary
       to the appellate court’s holding in LaPointe, a lower standard than that befitting the cause
       and prejudice [standard].” 2011 IL App (1st) 100391-U, ¶ 13. Second, the appellate court
       held that, regardless of the applicable standard, defendant “failed to assert an arguable claim
       of cause” because, “[b]y operation of law, every sentence includes a term of mandatory
       supervised release in addition to the term of imprisonment imposed.” Id. ¶ 15 (citing 730
       ILCS 5/5-8-1(d) (West 2008), and People ex rel. Scott v. Israel, 66 Ill. 2d 190, 194 (1977)).
       Thus, “the fact that defendant was not consciously aware of the three-year MSR term which
       attached to his sentence when he filed his initial post-conviction petition does not constitute
       an objective factor, external to the defense, which impeded his ability to raise this claim in
       his initial post-conviction petition.” Id. Accordingly, the appellate court affirmed the trial
       court’s denial of defendant’s motion for leave to file a successive postconviction petition. Id.
       ¶ 16.
¶8          Defendant filed a petition for leave to appeal, which we allowed. Ill. S. Ct. R. 315 (eff.
       Feb. 26, 2010).

¶9                                        DISCUSSION
¶ 10       The Post-Conviction Hearing Act provides a means by which a criminal defendant can
       assert that “in the proceedings which resulted in his or her conviction there was a substantial

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       denial of his or her rights under the Constitution of the United States or of the State of
       Illinois or both.” 725 ILCS 5/122-1(a)(1) (West 2008). The Act permits the filing of only one
       petition without leave of court (725 ILCS 5/122-1(f) (West 2008)), and it expressly provides
       that any claim not raised in the original or amended petition is waived (725 ILCS 5/122-3
       (West 2008)). Consequently, to initiate a successive postconviction proceeding, a defendant
       must first obtain leave of court, which is granted only when the defendant “demonstrates
       cause for his or her failure to bring the claim in his or her initial post-conviction proceedings
       and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2008). To show cause,
       a defendant must identify “an objective factor that impeded his or her ability to raise a
       specific claim during his or her initial post-conviction proceedings.” Id. To show prejudice,
       a defendant must demonstrate “that the claim not raised during his or her initial post-
       conviction proceedings so infected the trial that the resulting conviction or sentence violated
       due process.” Id.
¶ 11        Here, defendant raises two arguments relating to the evaluation of cause and prejudice
       claims, one relating to the timing of that evaluation and one relating to the standard
       governing that evaluation. First, defendant argues that, under the Act, the sufficiency of a
       cause and prejudice claim is to be evaluated in conjunction with, rather than prior to, first-
       stage postconviction proceedings. According to defendant, section 122-1(f) “was intended
       only to codify and clarify existing practice ***, not to create a new stage of proceedings.”
       Second, defendant argues that, because the sufficiency of a cause and prejudice claim is to
       be evaluated in conjunction with first-stage postconviction proceedings, the applicable
       standard should be that which applies to first-stage proceedings generally. Thus, defendant
       argues, in order to obtain leave to file a successive postconviction petition, a petitioner need
       only assert “an arguable claim” of cause and prejudice. See People v. Hodges, 234 Ill. 2d 1,
       16 (2009) (holding that a pro se postconviction petition may be summarily dismissed at the
       first stage “only if the petition has no arguable basis either in law or in fact”).
¶ 12        Important as these arguments are (infra ¶ 18), we need not address either of them in this
       case. This is because, in his motion for leave to file the successive petition, defendant asserts
       as “cause” something that, as a matter of law, can never be “cause.”
¶ 13        This court has made very clear that “all citizens are charged with knowledge of the law”
       and that “[i]gnorance of the law or legal rights will not excuse a delay in filing a lawsuit.”
       People v. Lander, 215 Ill. 2d 577, 588 (2005); see also People v. Boclair, 202 Ill. 2d 89, 104-
       05 (2002). Yet ignorance of the law is precisely the “cause” that defendant asserts here to
       justify his failure to include the present claim in his initial postconviction petition. Again,
       defendant’s present claim is that, in violation of his due process rights, he will be made to
       serve a three-year term of MSR that was neither imposed nor even mentioned by the trial
       court at sentencing. And his excuse for not including this claim in his initial postconviction
       petition is that:
                “The information about the M.S.R. was not yet discovered to me yet. And when I did
                learn about it more research need to be done. Also it was still being decided in
                appeals court, so no case were able to be used as evidence. Basically I Petitioner just
                discovered this.”


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       Thus, the only excuse that defendant proffers for not raising the MSR claim sooner is that
       he only “just discovered” that he would be subject to a three-year term of MSR following his
       release. But at the time defendant was sentenced, as well as at the time of both his direct
       appeal and his initial postconviction proceeding, the Unified Code of Corrections expressly
       provided that, by operation of law, every Class X sentence “shall include as though written
       therein a [three-year term of MSR] in addition to the term of imprisonment.” 730 ILCS 5/5-
       8-1(d)(1) (West 2004). Defendant is presumptively charged with knowledge of this
       provision, and, as a matter of law, his subjective ignorance of it is not “an objective factor
       that impeded” his ability to raise the MSR claim sooner.
¶ 14        When asked about this matter at oral argument, defense counsel responded that ignorance
       of the law is not a factor in this case because, in a 2006 decision, the Second Circuit Court
       of Appeals held that a statutorily mandated term of supervised release is unenforceable if not
       expressly imposed by the sentencing court. See Earley v. Murray, 451 F.3d 71 (2d Cir.
       2006). According to defense counsel, “assuming [Earley] is correct, then no matter what the
       statute says, [defendant] never had an MSR term until sometime later the Illinois Department
       of Corrections put that in on its own.”
¶ 15        There are at least two problems with this argument. First, decisions of the Second Circuit
       Court of Appeals construing New York law have no power to enjoin the enforcement of
       Illinois statutes. Thus, even assuming that Earley was correctly decided, that decision has
       absolutely no consequence in Illinois unless and until a court of this state endorses its
       analysis and then applies that analysis to section 5-8-1(d)(1), a contingency that has yet to
       occur. Defendant was not free simply to assume that, because of Earley, section 5-8-1(d)(1)
       would never be enforceable against him. As far as defendant is concerned, section 5-8-
       1(d)(1) was, is, and remains the law, and he therefore is charged with full knowledge of it.
¶ 16        Second, Earley was decided on June 9, 2006, some 15 months after defendant was
       sentenced. Thus, whatever reason defendant now has to believe that he cannot be made to
       serve the statutorily mandated MSR term, he had no reason to believe that when his sentence
       was actually imposed. Or to put it another way, defendant cannot claim that a decision
       handed down 15 months after sentencing somehow excuses his ignorance of the law at the
       time of sentencing. At that time, defendant was expected to know, and in fact is charged with
       knowing, that his term of years would include an additional three-year term of MSR “as
       though written therein.” 730 ILCS 5/5-8-1(d)(1) (West 2004). Nothing about Earley changes
       that.
¶ 17        Consequently, we hold both that the circuit court of Cook County properly denied
       defendant’s pro se motion for leave to file a successive postconviction petition and that the
       appellate court properly affirmed that denial.
¶ 18        Before concluding, we wish to speak briefly to the issues that defendant sought to raise
       in this court. Although we do not have cause to reach them in this case, these issues highlight
       important deficiencies in the Act. When it enacted section 122-1(f), the legislature grafted
       into the Act two new requirements: the obtaining of leave to file a successive postconviction
       petition, and the demonstration of cause and prejudice. In doing this, however, the legislature
       made no provision for when or precisely how a successive postconviction petitioner satisfies


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       these requirements. For example, is cause and prejudice evaluated prior to the first stage of
       postconviction proceedings, or in conjunction with the first stage of postconviction
       proceedings? Does a successive postconviction petitioner “demonstrate” cause and prejudice
       by adequately pleading it, or by actually proving it? And if by actually proving it, what
       provision is there for the presentation of evidence? Is cause and prejudice a one-sided
       question, or may the State contest a cause and prejudice claim? These are just some of the
       questions that section 122-1(f) raises, and the Act answers none of them. As importantly, but
       for the facial deficiency of defendant’s cause claim in this case, we would be having to
       address at least some of these questions today, absent any statutory guidance. In light of this,
       we would invite the legislature to seize the window of opportunity that this case provides
       and, sometime before the next such case arrives on our docket, enact a more complete
       statutory framework for successive postconviction practice. Because the next case will arrive,
       and when it does, our analysis will be governed either by the legislature’s judgment or by our
       own. We would prefer it be the legislature’s.

¶ 19                                     CONCLUSION
¶ 20       For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 21       Affirmed.

¶ 22        JUSTICE BURKE, dissenting:
¶ 23        We granted defendant’s petition for leave to appeal in this case in order to settle a split
       of authority in the appellate court with regard to the legal standard applicable to a pro
       se petitioner’s motion seeking leave to file a successive postconviction petition. The majority
       chooses not to resolve the split of authority, instead holding that defendant’s motion for leave
       to file his successive petition fails because he “asserts as ‘cause’ something that, as a matter
       of law, can never be ‘cause.’ ” Supra ¶ 12. There is no reason why this court should not
       address the important legal questions raised in this appeal. For this reason, I dissent.
¶ 24        In his petition for leave to appeal, defendant requests that this court resolve the clear split
       of authority among the appellate court districts on the legal standard to be applied to a
       motion under section 122-1(f) of the Post-Conviction Hearing Act (725 ILCS 5/122-1(f)
       (West 2008)). See People v. LaPointe, 365 Ill. App. 3d 914, 924 (2d Dist. 2006) (holding
       that a section 122-1(f) motion “need state only the gist of a meritorious claim of cause and
       prejudice”), aff’d on other grounds, 227 Ill. 2d 39 (2007); People v. Evans, 2011 IL App
       (1st) 100391-U, ¶ 13 (5th Div.) (rejecting LaPointe, and finding that a stricter standard
       applies to pro se successive petitions); People v. Smith, 2011 IL App (1st) 091938-U, ¶¶ 15-
       17 (4th Div.) (rejecting LaPointe). Since the time that the present appeal was filed, several
       other decisions have either called into question the holding in LaPointe or noted the
       disagreement among the districts. See People v. McKinley, 2012 IL App (1st) 110513-U,
       ¶¶ 13-15 (2d Div.) (rejecting LaPointe); People v. Edwards, 2012 IL App (1st) 091651,
       ¶¶ 21-22 (6th Div.) (rejecting LaPointe); People v. Files, 2012 IL App (2d) 110012-U, ¶ 12
       (noting disagreement).

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¶ 25        Today the majority declines to resolve the split of authority in the appellate court on an
       issue squarely raised in this appeal, the issue which prompted this court to grant defendant’s
       petition for leave to appeal. Instead, the majority “invite[s] the legislature to seize the
       window of opportunity that this case provides and, sometime before the next such case
       arrives on our docket, enact a more complete statutory framework for successive
       postconviction practice.” Supra ¶ 18. The legislature will not have time to act before the next
       such case arrives, however, because there are currently a number of cases on our docket
       being held for the resolution of this case. See, e.g., People v. Hunter, No. 113132; People v.
       Staple, No. 113919; People v. Edwards, No. 114084; People v. Thompson, No. 115006;
       People v. Lee, No. 115020.
¶ 26        Further, the majority’s invitation to the legislature is contrary to the function of this court.
       It is this court’s role to interpret statutory language, particularly where the appellate court
       districts disagree about the meaning of that language. See Allegis Realty Investors v. Novak,
       223 Ill. 2d 318, 334-35 (2006) (“[T]he legislature’s role is to make the law and the
       judiciary’s role is to interpret the law.”); Roth v. Yackley, 77 Ill. 2d 423, 429 (1979) (“[I]t is
       the function of the judiciary to determine what the law is and to apply statutes to cases.”).
¶ 27        Thus, I disagree with the majority’s decision to avoid the issue raised in this appeal by
       pleading to the legislature to clarify its intent. There is no need to wait for the next case to
       arrive on our docket. Those cases are already here. We should address the issue which the
       parties in this case have taken time to raise, brief, and argue before this court. Today’s
       decision allows the uncertainty in the appellate court to continue indefinitely. Therefore, I
       would address the pleading standard issue.




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