                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                             People v. English, 2011 IL App (3d) 100764




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      SCOTT F. ENGLISH, Defendant-Appellant.



District & No.               Third District
                             Docket No. 3–10–0764


Filed                        June 27, 2011
Rehearing denied             July 29, 2011
Held                         Consideration of defendant’s postconviction claim that his conviction
(Note: This syllabus         for aggravated battery of a child could not serve as the predicate forcible
constitutes no part of the   felony to support his conviction for felony murder was barred by the
opinion of the court but     doctrine of res judicata, since defendant could have raised that issue in
has been prepared by the     his direct appeal, but he did not, and consideration of defendant’s claim
Reporter of Decisions for    that his appellate counsel was ineffective in failing to raise the issue in
the convenience of the       defendant’s direct appeal was barred on the ground that defendant’s
reader.)                     claim was raised for the first time in his reply brief.


Decision Under               Appeal from the Circuit Court of Henry County, No. 95–CF–305; the
Review                       Hon. Charles H. Stengel, Judge, presiding.



Judgment                     Affirmed.
Counsel on                  Kerry J. Bryson (argued), of State Appellate Defender’s Office, of
Appeal                      Ottawa, for appellant.

                            Terence M. Patton, State’s Attorney, of Cambridge (Terry A. Mertel
                            and Gary F. Gnidovec (argued), both of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
                            Presiding Justice Carter and Justice Wright concurred in the judgment
                            and opinion.




                                              OPINION

¶1          Defendant, Scott English, appeals the dismissal of his postconviction petition. Following
        a hearing on the State’s motion to dismiss, the trial court found the doctrine of res judicata
        barred consideration of defendant’s claims. Defendant asserts the trial court erred in
        dismissing his petition as the acts constituting his felony murder conviction arose from and
        were inherent in the underlying felony of aggravated battery of a child. We affirm.

¶2                                              FACTS
¶3          As this court has previously considered this matter in People v. English, No. 3–96–0767
        (2000) (unpublished order under Supreme Court Rule 23) (English I), and People v. English,
        381 Ill. App. 3d 906 (2008) (English II), and the facts are well known to the parties, we will
        only briefly recite the facts of the case.
¶4          In October of 1995, the State charged defendant in the death of three-year-old Jami Sue
        Pollock. Originally, the State charged defendant with first degree murder (720 ILCS
        5/9–1(a)(2) (West 1996)), first degree felony murder predicated on the felony of aggravated
        battery of a child (720 ILCS 5/9–1(a)(3) (West 1996)), and aggravated battery of a child (720
        ILCS 5/12–4.3(a) (West 1996)). Evidence adduced at trial showed Jami had 10 separate
        bruises on her body when brought into the emergency room. The bruises appeared to range
        between one week and one day old. Defendant admitted to the police that he struck Jami a
        number of times as routine measures of discipline on the night she was found unresponsive,
        but could not tell exactly where on her body he struck her as she was bundled in blankets.
¶5          A forensic pathologist testified that, during the autopsy, she found “many, many, many”
        bruises and “many, many injuries” on Jami’s body. Jami’s face was pale and bruised, as if
        she “either had something pressed against her face or her face pressed against something.”
        Jami had fingernail scratches on her chest that appeared self-inflicted as she tried “to scratch

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       or scrape or claw something away.” Jami had an eight-centimeter bruise on the back of her
       head and “massive” hemorrhaging beneath her scalp caused by “heavy, rapid or massive”
       force to Jami’s head.
¶6         According to the pathologist, Jami’s injuries were inconsistent with being struck as
       described by defendant or wrapped too tightly in a blanket. The pathologist attributed Jami’s
       death to blunt force injuries to her head and chest, and asphyxia, either of which would have
       caused death.
¶7         At the close of trial, the circuit court granted the State’s motion to dismiss the first degree
       murder charge. Over defense counsel’s objection, the circuit court refused to instruct the jury
       on the offense of involuntary manslaughter. The jury found defendant guilty on the charges
       of felony murder and aggravated battery of a child. The circuit court then sentenced
       defendant to natural life.
¶8         In English I, this court held “the circuit court did not abuse its discretion when it did not
       instruct the jury on involuntary manslaughter.” English I, slip op. at 11. In reaching that
       conclusion, the English I court noted that the trial court instructed the jury on both
       recklessness and knowing conduct and stated that, “The evidence in this case shows that
       English acted with intent to cause great bodily harm. The jury found English guilty of
       aggravated battery of a child and, therefore, that he acted intentionally or knowingly. It could
       not also have found that he acted recklessly. Consequently, the jury found English guilty of
       felony murder. Had the jury found that English merely acted recklessly, it should have
       acquitted him of aggravated battery of a child and could not have convicted him of felony
       murder.” English I, slip op. at 11.
¶9         As the statute under which the circuit court imposed defendant’s life sentence was found
       to violate the single subject clause (see People v. Wooters, 188 Ill. 2d 500 (1999)), we
       vacated defendant’s life sentence on direct appeal in English I and remanded for further
       proceedings. English I, slip op. at 12.
¶ 10       In 1999, during the pendency of defendant’s direct appeal, he filed a postconviction
       petition, which he later voluntarily dismissed on August 6, 2003. Then, in 2004, he filed
       another postconviction petition. The trial court treated the 2004 petition as a successive
       petition and dismissed it on May 24, 2004, pursuant to the State’s motion. Defendant then
       filed a motion to reinstate his original 1999 petition. By order entered September 26, 2005,
       the trial court denied defendant’s motion to reinstate and defendant, again, appealed to this
       court.
¶ 11       In English II, this court held it had no jurisdiction to consider the dismissal of defendant’s
       2004 postconviction petition as the trial court dismissed that petition on May 24, 2004, and
       defendant failed to file a timely notice of appeal. English II, 381 Ill. App. 3d at 909.
       However, the English II court noted that defendant did, in fact, file a timely notice of appeal
       after denial of his motion to reinstate his 1999 petition. In addressing that matter, the English
       II court held the trial court erred in denying defendant’s motion to reinstate his 1999 petition.
       English II, 381 Ill. App. 3d at 910. The court noted that defendant voluntarily dismissed his
       1999 petition on August 6, 2003, and moved to reinstate the petition on August 5, 2004. As
       postconviction proceedings are civil in nature, the English II court found that pursuant to


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       section 13–217 of the Code of Civil Procedure (735 ILCS 5/13–217 (West 2004)), defendant
       had one year to refile or reinstate his voluntarily dismissed petition. English II, 381 Ill. App.
       3d at 910. As such, the English II court reversed the trial court’s denial of defendant’s motion
       to reinstate his original petition and remanded “the cause to allow the trial court to reinstate
       the original postconviction petition, with amendments, and treat it as an initial petition.”
       English II, 381 Ill. App. 3d at 910.
¶ 12       On remand, defendant filed an amended petition, arguing that his felony murder
       conviction based on the predicate felony of aggravated battery of a child must be vacated
       because the acts constituting aggravated battery of a child arose from and were inherent in
       the killing of the child. The State filed an answer and motion to dismiss in which it argued
       that the doctrine of res judicata barred defendant’s claims and that the authorities cited by
       defendant to support his conclusions were distinguishable from the case at bar.
¶ 13       A hearing took place on September 29, 2010, after which the trial court “denied”
       defendant’s “amended petition for postconviction relief.” This appeal followed.

¶ 14                                          ANALYSIS
¶ 15        The trial court’s denial of defendant’s petition took place after a third-stage hearing. Our
       supreme court has consistently maintained that at such a hearing, “the burden is on the
       defendant to make a substantial showing of a deprivation of constitutional rights and the
       circuit court’s decision will not be disturbed unless it is manifestly erroneous.” People v.
       Coleman, 206 Ill. 2d 261, 277 (2002). “The term ‘manifest error’ means error that is ‘clearly
       evident, plain and indisputable.’ ” Coleman, 206 Ill. 2d at 277 (quoting People v. Ruiz, 177
       Ill. 2d 368, 384-85 (1997)).
¶ 16        Citing People v. Morgan, 197 Ill. 2d 404 (2001), and People v. Pelt, 207 Ill. 2d 434
       (2003), defendant alleged in his amended petition that the acts constituting the aggravated
       battery of a child arose from and were inherent in the killing of the child. Given the holdings
       of those cases, defendant maintains on appeal that the trial court erred by denying his petition
       and failing to vacate his conviction for felony murder based on the predicate felony of
       aggravated battery of a child.
¶ 17        The State asserts that defendant’s claim is barred by the doctrine of res judicata or
       procedurally defaulted. We agree. Our supreme court has consistently held:
            “Postconviction claims are limited to those claims that were not and could not have been
            previously adjudicated on direct appeal. [Citation.] Claims that were raised and decided
            on direct appeal are barred by res judicata and those claims that could have been raised,
            but were not, are considered waived.” People v. Sanders, 238 Ill. 2d 391, 398 (2010)
            (citing People v. Towns, 182 Ill. 2d 491, 502-03 (1998)).
       See also People v. Petrenko, 237 Ill. 2d 490, 499 (2010) (“A postconviction proceeding is
       not an appeal from the judgment of conviction, but is a collateral attack on the trial court
       proceedings. [Citation.] Consequently, issues that could have been raised on direct appeal
       but were not are forfeited. [Citation.] Here, defendant’s claim concerning trial counsel’s
       failure to contest the validity of the search warrant is based entirely on facts contained in the
       trial court record. That claim therefore could have been raised on direct appeal, and

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       defendant’s failure to do so results in its forfeiture.”); People v. West, 187 Ill. 2d 418, 425
       (1999) (“A post-conviction action is a collateral attack on a prior conviction and sentence.
       [Citations.] *** The scope of the proceeding is limited to constitutional matters that neither
       have been, nor could not have been, previously adjudicated. Any issues which could have
       been raised on direct appeal, but were not, are procedurally defaulted [citation], and any
       issues which have previously been decided by a reviewing court are barred by the doctrine
       of res judicata [citation].”); People v. Winsett, 153 Ill. 2d 335, 346 (1992) (“It is well
       established that the scope of post-conviction review is limited to constitutional matters which
       have not been, and could not have been, previously adjudicated.”).
¶ 18        The claim raised in defendant’s postconviction petition, that his felony murder conviction
       is improper as it is based on acts constituting the underlying predicate felony of aggravated
       battery of a child, is based entirely on matters contained within the trial record. Undoubtedly,
       defendant could have raised this issue in the direct appeal he filed in 1996. The question of
       whether an aggravated battery that resulted in death could serve as the predicate felony to
       sustain a felony murder conviction was not a new or novel concept in 1996. See People v.
       Viser, 62 Ill. 2d 568 (1975); People v. Thurman, 223 Ill. App. 3d 196, 202 (1991)
       (“Defendant argues that a charge of felony murder cannot be based on aggravated battery.
       Because every murder involves an aggravated battery, defendant argues that every murder
       could be charged as felony murder ***.”); People v. Bennett, 222 Ill. App. 3d 188 (1991);
       People v. Szerletich, 86 Ill. App. 3d 1121 (1980).
¶ 19        The fact that cases decided after defendant’s direct appeal added authority to the long line
       of cases discussing felony murder, and specifically discussing aggravated battery as the
       predicate felony that serves as the basis for a felony murder conviction, in no way precluded
       defendant from raising the issue he raised for the first time in his postconviction petition. See
       People v. Leason, 352 Ill. App. 3d 450, 454 (2004) (“[T]he lack of precedent for a position
       differs from ‘cause’ for failing to raise an issue, and a defendant must raise the issue, even
       when the law is against him, to preserve it for review.”); People v. Purnell, 356 Ill. App. 3d
       524 (2005) (citing the proposition quoted in Leason with approval).
¶ 20        We find defendant could have raised the issue of whether his conviction for aggravated
       battery of a child properly served as the predicate forcible felony to support his felony murder
       conviction on direct appeal. He did not. As such, consideration of that issue is barred by the
       doctrine of res judicata.
¶ 21        In his reply brief, defendant raises the issue of ineffective assistance of appellate counsel
       for the first time. He asserts that if we found, as we have, that his claim is forfeited or barred
       by the doctrine of res judicata, then we must also find his appellate counsel constitutionally
       ineffective for not previously raising the claim. We disagree.
¶ 22        Almost a century ago, our supreme court noted, “Under the rules of this court and its
       long[-]settled practice, questions not raised by appellants in the original brief cannot be
       raised in the reply brief. A contrary practice would permit appellants to argue questions in
       their reply briefs as to which counsel for appellees would have no opportunity to reply.
       Th[ese] question[s] therefore need not be considered.” Holliday v. Shepherd, 269 Ill. 429,
       436 (1915); see also People v. Lindsey, 72 Ill. App. 3d 764, 776 (1979); Illinois Health


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       Maintenance Organization Guaranty Ass’n v. Department of Insurance, 372 Ill. App. 3d 24
       (2007); People ex rel. Village of Vernon Hills v. Village of Lincolnshire, 283 Ill. App. 3d 266
       (1996).
¶ 23       As defendant raised the issue of ineffective assistance of appellate counsel for the first
       time in his reply brief, it need not be considered. Moreover, defendant’s claim that his direct
       appellate counsel’s performance was constitutionally ineffective for failing to raise Pelt or
       Morgan has no merit.
¶ 24       In People v. Viser, 62 Ill. 2d 568 (1975), the defendant argued that an aggravated battery
       of jumping on a police officer’s chest “cannot be the underlying felony in a felony murder
       charge where the aggravated battery is alleged to have been committed against the person
       who eventually dies.” (Internal quotation marks omitted.) Viser, 62 Ill. 2d at 577. Our
       supreme court disagreed and clearly held that aggravated battery can properly serve as the
       predicate felony to sufficiently support a felony murder conviction. Viser, 62 Ill. 2d at 586-
       87. The Viser court noted:
           “[W]e are not concerned with whether the General Assembly, in establishing the offense
           of felony murder, intended to deter the criminal from the commission of rape, or robbery,
           or burglary, but not to deter him from the violent assault that accompanies each of those
           offenses. That kind of fragmentation of legislative purpose cannot survive the forthright
           characterization of aggravated battery as one of the forcible felonies that will trigger a
           charge of felony murder. What was intended was to deter the commission of any of the
           enumerated forcible felonies, including aggravated battery, by holding the perpetrator
           responsible for murder if death results.” Viser, 62 Ill. 2d at 580.
¶ 25       When defendant filed his direct appeal, in 1996, Viser stood as the law of the land and
       as such we fail to see how appellate counsel could have been ineffective for failing to raise
       the 2001 case of Morgan or 2003 case of Pelt when filing the 1996 appeal.
¶ 26       While we acknowledge Morgan and Pelt somewhat depart from the holding in Viser, it
       is clear our supreme court firmly stands behind the statements it made in Viser.
       Approximately six years after Pelt, our supreme court unequivocally noted that “felony
       murder predicated on aggravated battery is a legally existent crime in Illinois.” People v.
       Davis, 233 Ill. 2d 244, 268 (2009). The Davis court went on to note that our supreme court
       in Viser “held that felony murder predicated on aggravated battery is a valid and existing
       crime” in Illinois and that “Viser has never been overruled by this court, and was essentially
       reaffirmed by our most recent decision in this area in People v. Davis, 213 Ill. 2d 459, 475
       (2004).”
¶ 27       Again, as defendant has raised his ineffective assistance of appellate counsel claim for
       the first time in his reply brief, we need not address the issue. Were we to address it,
       however, we would find it is without merit.

¶ 28                                    CONCLUSION
¶ 29      For the foregoing reasons, the order of the circuit court of Henry County is affirmed.
¶ 30      Affirmed.


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