                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Pinkston, 2013 IL App (4th) 111147




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     ANDREW PINKSTON, Defendant-Appellant.



District & No.              Fourth District
                            Docket No. 4-11-1147


Filed                       April 30, 2013


Held                        The denial of defendant’s motion for discovery in his postconviction
(Note: This syllabus        proceedings based on the erroneous belief that discovery was not allowed
constitutes no part of      in postconviction proceedings was remanded for the limited purpose of
the opinion of the court    allowing the trial court to exercise its discretion on defendant’s request,
but has been prepared       since a trial court has inherent authority to order discovery in
by the Reporter of          postconviction proceedings following a hearing for “good cause shown.”
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of McLean County, No. 06-CF-931; the
Review                      Hon. Scott Drazewski, Judge, presiding.



Judgment                    Cause remanded with directions.
Counsel on                 Michael J. Pelletier, of State Appellate Defender’s Office, of Springfield,
Appeal                     and Rita M. Anderson and Dan W. Evers, both of State Appellate
                           Defender’s Office, of Mt. Vernon, for appellant.

                           Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
                           Robert J. Biderman, and Luke McNeill, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE KNECHT delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Holder White concurred in the
                           judgment and opinion.




                                             OPINION

¶1          Defendant was convicted of two counts of unlawful delivery of a controlled substance
        and sentenced to concurrent 11-year prison terms. This court affirmed defendant’s
        convictions and sentences. In February 2009, defendant filed a pro se postconviction petition.
        In September 2010, defendant filed a motion for discovery. In May 2011, the trial court
        denied defendant’s motion for discovery based on the belief discovery was not allowed in
        postconviction proceedings. In December 2011, an evidentiary hearing was held on
        defendant’s remaining postconviction claim of ineffective assistance of trial counsel.
        Because defendant failed to present any evidence at the hearing, the trial court dismissed his
        postconviction petition.
¶2          Defendant appeals, arguing the trial court abused its discretion when it denied his
        discovery request because it failed to recognize it had the discretion to grant defendant’s
        request for discovery. We remand 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.

¶3                                     I. BACKGROUND
¶4         Following a December 2006 jury trial, defendant, Andrew Pinkston, was convicted of
        two counts of unlawful delivery of a controlled substance (720 ILCS 570/401(d)(i) (West
        2006)). In January 2007, defendant was sentenced to concurrent 11-year terms of
        imprisonment. This court affirmed defendant’s convictions and sentences on direct appeal.
        People v. Pinkston, No. 4-07-0399 (Aug. 14, 2008) (unpublished order under Supreme Court
        Rule 23).
¶5         In February 2009, defendant filed a pro se postconviction petition, raising multiple

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       claims, including that the State improperly withheld discovery information relating to
       payments made to an informant, the State’s key witness, in his case. During a March 2010
       hearing on the State’s motion to dismiss defendant’s postconviction petition, the court
       dismissed all but one of defendant’s claims on the grounds they were either meritless,
       forfeited, or barred by res judicata. The only issue allowed to proceed to a third-stage
       evidentiary hearing concerned whether trial counsel was ineffective for failing to investigate
       or call key witnesses who had exonerating information to support defendant’s claim of
       innocence.
¶6          In September 2010, defendant filed a motion for discovery. The discovery motion
       contained numerous requests, including a request for the Bloomington police department and
       the Illinois State Police to disclose any reports made by the State’s witnesses, as well as any
       promises, rewards, or threats made by the State to any witnesses. Additionally, the motion
       requested the records of all other proceedings or trials the State’s witnesses had participated
       in, any records of their drug or alcohol treatment, records of any funds paid to the witnesses,
       exculpatory information, records of any substance testing done on the witnesses, and any
       other material pertaining to defendant’s case.
¶7          During a May 2011 hearing, the trial court denied defendant’s motion for discovery,
       informing defendant “There’s no discovery that is contemplated in a post-conviction
       petition.” When defendant asked the court to repeat itself, the court responded, “Discovery
       is not available in a post-conviction petition.” Defendant repeated the statement as a query
       to the court, asking, “Discovery is not available in a post-conviction petition?” The court
       responded, “Correct.” The court later reiterated, “As I’ve already said, there is no discovery
       process that is contemplated or provided for in the Post-Conviction Act.” Defendant stated
       he understood the court’s ruling, but “hate[d] to make a claim without having proof of the
       facts.” The court again reiterated discovery is “not provided for by way of the statute.”
¶8          During a December 2011 evidentiary hearing on his postconviction issue, defendant
       informed the trial court he was not ready to proceed and sought a continuance. The court
       denied defendant’s request. Because defendant failed to examine either of his attorneys who
       were present at the hearing or present any other evidence, the State sought a directed
       judgment, which the court granted.
¶9          This appeal followed.

¶ 10                                       II. ANALYSIS
¶ 11       On appeal, defendant argues the trial court abused its discretion when it denied his
       discovery request because it failed to recognize it had the discretion to grant defendant’s
       request for discovery, an error he asserts requires this court to remand for further proceedings
       so the court can properly exercise its discretion.
¶ 12       Initially, we note discovery orders are not appealable under Illinois Supreme Court Rule
       301 (eff. Feb. 1, 1994) or Rule 304 (eff. Feb. 26, 2010) and are typically reviewed only on
       appeal from a final judgment. Kraima v. Ausman, 365 Ill. App. 3d 530, 533, 850 N.E.2d 840,
       844 (2006). Defendant was precluded from appealing the trial court’s denial of his discovery
       request prior to the court’s dismissal of his postconviction petition.

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¶ 13        Our supreme court has held 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, 526 N.E.2d 131, 135 (1988); People v. Fair, 193
       Ill. 2d 256, 264-65, 738 N.E.2d 500, 504 (2000). Because of the possibility for abuse of the
       discovery process in postconviction petitions, circuit courts must exercise discretion in
       granting or denying discovery requests. Daley, 123 Ill. 2d at 183, 625 N.E.2d at 135; Fair,
       193 Ill. 2d at 264, 738 N.E.2d at 504. Discovery should be allowed when “the defendant has
       shown ‘good cause,’ considering the issues presented in the petition, the scope of the
       requested discovery, the length of time between the conviction and the post-conviction
       proceeding, the burden of discovery on the State and on any witnesses, and the availability
       of the evidence through other sources.” People v. Johnson, 205 Ill. 2d 381, 408, 793 N.E.2d
       591, 608 (2002) (citing Daley, 123 Ill. 2d at 183-84, 625 N.E.2d at 135). We will only
       reverse a trial court’s denial of a postconviction discovery request if the trial court abused
       its discretion. Fair, 193 Ill. 2d at 265, 738 N.E.2d at 504-05.
¶ 14        A trial court commits error when it refuses to exercise discretion based on the erroneous
       belief it does not have discretion. People v. Queen, 56 Ill. 2d 560, 565, 310 N.E.2d 166, 169
       (1974); People v. Autman, 58 Ill. 2d 171, 176, 317 N.E.2d 570, 572 (1974). The State
       concedes the trial court erred in denying defendant’s motion for discovery based on the
       erroneous belief it did not have discretion. The State also asserts the court did not abuse its
       discretion in denying defendant’s discovery request because the request was merely a
       “fishing expedition.” See Johnson, 205 Ill. 2d at 408, 793 N.E.2d at 608 (“A trial court does
       not abuse its discretion in denying a discovery request which ranges beyond the limited scope
       of a post-conviction proceeding and amounts to a ‘fishing expedition.’ ”). The State cites
       People v. Higgins, 71 Ill. App. 3d 912, 927, 390 N.E.2d 340, 351 (1st Dist. 1979), People
       v. Hemphill, 62 Ill. App. 3d 977, 984, 379 N.E.2d 1284, 1290 (1st Dist. 1978), and People
       v. Land, 304 Ill. App. 3d 169, 174, 710 N.E.2d 471, 474 (4th Dist. 1999), for the proposition
       reversal is not warranted when the error is harmless.
¶ 15        In Higgins, the trial court mistakenly believed it lacked discretion to consolidate
       separately charged offenses for a single jury trial. Higgins, 71 Ill. App. 3d at 927, 390 N.E.2d
       at 351. While recognizing the trial court erred in refusing to exercise its discretion based on
       the erroneous belief it had no discretion, the First District Appellate Court found the error
       was harmless because “denying defendant’s motion for consolidation was the ‘only’ proper
       conclusion that could have been reached” because there was “no thread of continuity between
       the three offenses and absolutely no indication that they were part of the same comprehensive
       transaction. [Citation.] Furthermore, considering their wide factual differences, it would have
       unduly confused the jury had the trial court consolidated these three separate indictments for
       a single jury trial.” Id. at 927-28, 390 N.E.2d at 352. Unlike the result in Higgins, denial of
       defendant’s discovery motion is not the “only proper conclusion that could have been
       reached” because the trial court could determine, after defendant makes an argument for
       good cause, discovery is appropriate.
¶ 16        In Hemphill, the defendant argued the trial court erroneously believed it lacked
       discretionary authority to allow the jury to review testimony of witnesses during
       deliberations, based on a statement it made to the jury informing them no transcripts of

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       witness testimony would be made available to them. Hemphill, 62 Ill. App. 3d at 983, 379
       N.E.2d at 1289. However, the First District Appellate Court found no merit in defendant’s
       argument because the court “did not state [it] could not allow the jury to review testimony
       during its deliberations but that ‘there [would] be no transcript available for that purpose,’ ”
       thus recognizing it did have discretion to furnish a transcript but was making the jury aware
       it would not do so in that case. Id., 379 N.E.2d at 1289-90. The court noted even if the trial
       judge abused his discretion, the error would be harmless due to the overwhelming evidence
       of defendant’s guilt and the fact any error committed was not prejudicial. Id. at 984, 379
       N.E.2d at 1290. Unlike Hemphill, however, the trial court here failed to recognize it had
       discretion to order discovery and defendant was denied an opportunity to argue good cause.
       Given his claim of ineffective assistance, we cannot say this error did not prejudice
       defendant.
¶ 17       In Land, the defendant argued the trial court erroneously imposed consecutive sentences
       under the belief it was required to do so, and thus the sentences were void. Land, 304 Ill.
       App. 3d at 173-74, 710 N.E.2d at 473-74. This court disagreed, finding “the trial court,
       within its discretion, could have imposed consecutive sentences *** had it believed such
       sentences were necessary to protect the public.” (Emphasis in original.) Id. at 174, 710
       N.E.2d at 474. This court further stated, “regardless of whether the court erroneously
       imposed mandatory consecutive sentences, it did not lack ‘the inherent power to make or
       enter the particular order involved,’ and the sentencing order here was not void.” Id.
       Additionally, this court noted when the trial court sentenced defendant to consecutive
       sentences, it “stated that it would not impose extended prison terms on each conviction
       ‘because of the severity of the statutory mandate for consecutive sentences’ ” and “ ‘I believe
       the legislature is appropriate in mandating this result.’ ” Id. at 171, 710 N.E.2d at 472. These
       statements support the conclusion the trial court would have imposed consecutive sentences
       even absent its erroneous belief such sentences were mandatory. Here, no record evidence
       supports a finding the court would have denied Pinkston’s discovery request, in toto, had it
       exercised its discretion.
¶ 18       In this case, in September 2010 defendant filed a motion for discovery which contained
       numerous requests for various information and records. During a May 2011 hearing, the trial
       court denied defendant’s discovery request, presumably without considering any of
       defendant’s requests, based on the erroneous belief it did not have discretion to order
       discovery in postconviction proceedings. The State’s argument seems to be if the court would
       have considered defendant’s discovery request, the court would have denied it because (1)
       defendant was engaging in nothing more than a mere “fishing expedition” and (2) this would
       be the only logical conclusion the court could draw based on the Daley factors. However, the
       court did not rule on the merits and defendant was not given an opportunity to argue he had
       “good cause” for his request. Whether defendant’s request was merely a “fishing expedition,”
       or whether defendant can show “good cause” for his request is a determination best left to
       the trial court. See People v. Harper, 347 Ill. App. 3d 499, 503, 807 N.E.2d 1001, 1004 (1st
       Dist. 2004) (“The trial court judge is also in the best position to evaluate the merits of the
       defendant’s motion.”). Unlike Higgins, Hemphill, and Land, defendant is not seeking to have
       his convictions or sentences reversed but is asking for a limited remand to allow the trial

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       court to properly exercise its discretion on his discovery request. We cannot foresee whether
       the court would have allowed defendant’s discovery request in whole or in part following an
       opportunity to argue good cause. We cannot determine whether the court’s failure to exercise
       its discretion was harmless.

¶ 19                                 III. CONCLUSION
¶ 20       We remand 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.

¶ 21      Cause remanded with directions.




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