                             2019 IL App (2d) 170196
                                  No. 2-17-0196
                            Opinion filed June 17, 2019
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 99-CF-2666
                                       )
ERICK D. CONWAY,                       ) Honorable
                                       ) Joseph G. McGraw,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SPENCE delivered the judgment of the court, with opinion.
       Justices Hutchinson and Schostok concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant, Erick D. Conway, appeals from the denial of leave to file a second petition for

relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)).

Defendant argues that the State improperly participated in the trial court’s determination whether

to grant leave and that the case must therefore be remanded for a new determination. We affirm.

¶2                                     I. BACKGROUND

¶3     Following a jury trial in the circuit court of Winnebago County, defendant was found

guilty of armed robbery (720 ILCS 5/18-2(a) (West 1998)) and was sentenced to life

imprisonment as a habitual criminal (id. § 33B-1). Defendant had originally been charged with

escape as well, but the two charges were severed. We affirmed defendant’s armed robbery
2019 IL App (2d) 170196


conviction on direct appeal. People v. Conway, No. 2-01-0924 (2003) (unpublished order under

Illinois Supreme Court Rule 23).        Defendant filed a petition under the Act, in which he

contended that he received ineffective assistance of counsel in his direct appeal because appellate

counsel failed to argue that defendant was not brought to trial within 120 days, as required by

section 103-5(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/103-5(a) (West

1998)). After some procedural missteps, defendant was given the opportunity to file an amended

petition with the reasonable assistance of counsel. The trial court granted the State’s motion to

dismiss the amended petition. We affirmed the dismissal. People v. Conway, No. 2-09-0193

(2010) (unpublished order under Illinois Supreme Court Rule 23).

¶4     On October 18, 2016, defendant moved for leave to file a successive postconviction

petition. In his motion, defendant argued that there was cause under section 122-1(f) of the Act

(725 ILCS 5/122-1(f) (West 2016)) for his failure to bring the successive petition’s claims in his

initial postconviction petition. Specifically, defendant argued that cause existed because, during

the initial postconviction proceedings, he was unfit due to mental illness. In the successive

petition itself, defendant alleged that, while in the Department of Corrections, he had been

diagnosed with severe anxiety and mild schizophrenia.

¶5     On October 21, 2016, Assistant State’s Attorney Steven Biagi appeared in court to voice

the State’s opposition to defendant’s motion. Defendant was not present. Biagi noted that, in

defendant’s initial postconviction petition, he claimed that he was deprived of his right to a

speedy trial. Biagi stated that continuances granted to defendant’s trial counsel were attributable

to defendant because defendant did not specifically seek to “fire” trial counsel. Biagi noted that

this court affirmed the dismissal of the original petition. Biagi argued that defendant was

“raising the very same issue” that he raised in the initial petition, but was “couching it in terms of



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how he believes he was unfit during his post-conviction proceedings.”              Biagi argued that

defendant’s alleged mental illness did not render him unfit. Biagi contended that defendant was

“just rehashing what he’s already raised and that which was rejected” and that defendant had not

shown cause or prejudice. See id. The trial court denied defendant’s motion for leave, stating as

follows:

       “As far as the issues raised, they have been raised previously and previously litigated

       ***.

              He makes a conclusory statement that he has been diagnosed with an anxiety

       disorder, among other things, *** and, therefore, he also makes a conclusory statement

       that somehow that rendered him unfit for trial. Of course, that’s a non sequitur. Because

       even if he has been diagnosed with an anxiety disorder in the Department of Corrections,

       it certainly bears no logical or legal relationship to his mental status at the time of trial or

       during the time of his previously filed post-conviction petitions.

              Furthermore, there is not an equivalency between a mental disorder or mental

       illness and unfitness. They are separate determinations. And there is no showing that he

       was, in fact, unfit during the time of his previous pleas or that he is currently unfit or that

       any of his prior filings were or are actions in any way impaired.

              This is essentially just an end run around the prohibition against successive post-

       conviction filings.”

¶6     After the trial court announced its ruling, Biagi asked whether the court recalled

defendant’s conduct during the proceedings on defendant’s initial postconviction petition. The

trial court responded that defendant “did not aver or allude to any difficulty with understanding

the proceedings or comprehending what was going on.” The court added that, at the time, it “had



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no reservations whatsoever about [defendant’s] lucidity, fitness and so forth.” The court entered

a written order denying the motion for essentially the same reasons. Defendant unsuccessfully

moved to reconsider, and this appeal followed.

¶7                                        II. ANALYSIS

¶8     The Act creates a procedure by which a criminal defendant may file a petition

challenging his conviction or sentence based on a substantial violation of constitutional rights.

People v. Lewis, 2017 IL App (1st) 150070, ¶ 13. The Act permits a defendant to file only one

petition without leave of court, which, as pertinent here, may be granted “only if a petitioner

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 2016). Cause

and prejudice are defined as follows:

       “(1) [A] prisoner shows cause by identifying an objective factor that impeded his or her

       ability to raise a specific claim during his or her initial post-conviction proceedings; and

       (2) a prisoner shows prejudice by demonstrating 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.

¶9     In People v. Bailey, 2017 IL 121450, ¶ 24, our supreme court held that the State “should

not be permitted to participate at the cause and prejudice stage of successive postconviction

proceedings.” The court reasoned that, for purposes of deciding whether a defendant should be

granted leave to file a successive petition, the cause-and-prejudice test presents a question of law

“to be decided on the pleadings and supporting documentation submitted to the court by the

defendant-petitioner and that no provision is made in the statute for an evidentiary hearing on the

issue of cause and prejudice.” Id. The court stressed that the inquiry “is a preliminary screening



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to determine whether defendant’s pro se motion for leave to file a successive postconviction

petition adequately alleges facts demonstrating cause and prejudice.” Id. Because the trial court

is capable of making an independent determination of the adequacy of the allegations, the Bailey

court saw “no reason for the State to be involved at the cause and prejudice stage.” Id. ¶ 25.

¶ 10      Defendant contends that the State’s input at the preliminary-screening stage in this case

was impermissible. The State responds that its input was minimal and that a remand is therefore

unnecessary. The State advised the trial court that defendant’s successive petition was just “a

rehashing of what [defendant had] already raised and that which was rejected.” In denying leave

to file a successive petition, the trial court similarly found that the issues raised in the successive

petition had previously been litigated. The State inquired whether the court recalled defendant’s

deportment during the proceedings on his first postconviction petition. The court noted that it

had seen no indication that defendant was unfit. According to the State, its input was minimal

because the court was familiar with the prior proceedings and the State did not convey any “new

or particularly adversarial information” to the court. According to the State, the court “did not

specifically rely on the State’s input or need to rely on its input to deny defendant’s motion for

leave.”

¶ 11      The State’s arguments are meritless. We note that there is no precedential case law

holding that input into the preliminary cause-and-prejudice inquiry is permissible if it is

de minimis. Arguments unaccompanied by a citation of pertinent authority are forfeited. Watson

v. West Suburban Medical Center, 2018 IL App (1st) 162707, ¶ 214. In any event, the State’s

participation here was not minimal. The trial court’s rationale for denying defendant’s motion

closely paralleled the State’s argument.        That the trial court was familiar with the prior

proceedings did not dilute the State’s input.



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¶ 12   The State’s participation at the cause-and-prejudice stage was improper, and we do not

condone it. The question remains, however, as to what relief, if any, is appropriate. See Bailey,

2017 IL 121450, ¶ 41. In Bailey, despite the State’s improper input at the cause-and-prejudice

stage, our supreme court declined to remand the case to the trial court. Instead, citing the

interests of judicial economy, the court undertook its own examination of cause and prejudice.

Concluding, as a matter of law, that the defendant had failed to show cause and prejudice, the

court affirmed the denial of leave to file a successive petition. Id. ¶ 49. However, in People v.

Munson, 2018 IL App (3d) 150544, cited by defendant, the Third District held that the appellate

court may not conduct its own examination of cause and prejudice and must instead remand to

the trial court when the State has had improper input at the cause-and-prejudice stage. The

Munson court reasoned as follows:

              “Unlike the supreme court, we do not have broad supervisory authority.

       [Citation.] 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.’ [Citation.] 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.” Id. ¶ 10.



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¶ 13   In People v. Baller, 2018 IL App (3d) 160165 (in which each member of the panel wrote

an opinion), the Third District adhered to its holding in Munson. Justice Schmidt dissented,

reasoning as follows:

              “The Munson court’s train jumped the tracks in paragraph 10. [Citation.] It

       simply asserted that to review the record to evaluate whether the trial court’s error

       prejudiced defendant involved an exercise of supervisory authority. It never discussed

       why that is so. The Munson court noted, ‘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.’ [Citation.]

       There is nothing novel or unique about affirming the trial court in this case without

       remand, notwithstanding the trial court’s error below. We do it all the time. Again, this

       has nothing to do with supervisory authority but, rather, with our license to affirm for any

       reason apparent in the record. I need not cite any case authority for the notion that

       ‘de novo’ is an oft-used standard of review in the appellate court. In plain English, the

       trial court reviewed and denied defendant’s motion for leave to file his successive

       postconviction petition. The trial court erred in allowing the State to participate in that

       decision. Notwithstanding the error, the ultimate judgment of the trial court was correct.

       We should affirm.     We do this thousands of times a year in cases not involving

       successive postconviction petitions. There is nothing about a successive postconviction

       petition that would take it out of the realm of garden-variety appellate review. That

       portion of the Munson court’s ruling, holding that affirming without remand involves




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       exercise of supervisory authority, appears to be an anomaly in Illinois jurisprudence. As

       in Bailey, the error below was harmless.” Id. ¶ 29 (Schmidt, J., dissenting). 1

¶ 14   In response to Justice Schmidt’s dissent, the author of the lead opinion (Justice Wright)

wrote that “unlike [the appellate court], the supreme court has been vested with broad

supervisory authority by the Illinois Constitution.” Id. ¶ 12 (lead opinion). Justice Wright

further reasoned:

       “[T]he procedural posture of the instant case creates an exception to the general principle

       that an appellate court may affirm on any basis found in the record. The supreme court

       has expressly held that the Act is entirely a creature of statute and all rights derive only

       from the statute. [Citation.] Further, the supreme court has expressly held that review of

       a motion for leave to file a successive postconviction petition must be conducted in a

       venue free from State participation. [Citation.] The only way to honor these holdings is

       to reset the scales of justice and remand the matter to the trial court for an independent

       evaluation of defendant’s motion by expressly ignoring the State’s input as expressed

       both in this court and the trial court.” Id. ¶ 16.

¶ 15   We find that Munson and Baller are unpersuasive. We disagree with the assertion that

the Bailey court’s review of the denial of the defendant’s motion for leave was an exercise of its

supervisory authority. The Bailey court never suggested that it was exercising its supervisory

authority when it considered whether the defendant was entitled to file a successive petition.

Rather, the Bailey court’s decision to consider that question, notwithstanding the error in the

       1
           The parties here did not originally contest the applicability of Munson. However, we

ordered supplemental briefing on the issue of whether, in light of the dissent in Baller, we should

follow Munson.



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proceedings below, was rooted in considerations of judicial economy. Those considerations

apply with equal force in appeals to this court.

¶ 16     Defendant contends that our supreme court is not required to announce when it is

exercising its supervisory authority. However, we certainly would expect the Bailey court to

have alerted us to such an important limitation on its decision. Moreover, the assumption in

Munson and Baller that the Bailey court exercised its supervisory authority is inconsistent with

our supreme court’s standards for exercising its supervisory authority. Our supreme court has

noted:

                “While our supervisory authority may be expansive, it is invoked with restraint.

         ***   We exercise our supervisory authority only under exceptional circumstances.

         [Citation.] More specifically, we have held that supervisory orders will be used ‘ “only if

         the normal appellate process will not afford adequate relief and the dispute involves a

         matter important to the administration of justice, or where intervention is necessary to

         keep an inferior court or tribunal from acting beyond the scope of its authority.” ’

         [Citation.]” Vasquez Gonzalez v. Union Health Service, Inc., 2018 IL 123025, ¶ 17.

¶ 17     According to Munson and Baller, the appropriate remedy when the State has input into

the decision whether to grant leave to file a successive petition is to remand to the trial court for

an independent determination of that question. Yet if that is the case, it is a mystery why the

Bailey court chose not to do so. There was nothing exceptional about that case requiring the

Bailey court to make its own determination whether the defendant was entitled to leave to file a

successive petition. If, as the Munson and Baller courts held, the normal appellate process

requires a remand to the trial court, we can see no reason why that would not have afforded

adequate relief to the defendant in Bailey. Nor does it appear that intervention was necessary in



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Bailey to prevent a lower court from exceeding its authority. Thus, defendant would have us

believe that the Bailey court exercised its supervisory authority both without saying so and under

circumstances where there was no apparent reason for doing so.

¶ 18   Rather than looking to Bailey to determine the proper remedy when the State participates

in the determination whether to grant leave to file, the Munson and Baller courts interpreted

Bailey to conform to their own views of the appropriate remedy. Our concern, however, is what

Bailey actually says about the proper remedy, not what the Munson and Baller courts believed

the Bailey court should have said about the subject. In any event, the Munson and Baller courts’

reasons for remanding to the trial court are unpersuasive.

¶ 19   The Munson court reasoned that “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.” Munson, 2018 IL App (3d) 150544, ¶ 10. Whether

this court has that power is beside the point. Determining whether a defendant established cause

and prejudice is a legal question that may be resolved without conducting a hearing. That is

what the Bailey court did, without giving any hint that it was acting outside the scope of the

powers conferred by Rule 615(b). That rule enumerates the permissible types of dispositions of

appeals; it does not specify or limit the grounds for choosing the appropriate disposition. The

State simply asks us to affirm the trial court’s judgment, and Rule 615(b) plainly permits us to do

so.

¶ 20   The Baller court observed that “the Act is entirely a creature of statute and all rights

derive only from the statute.” Baller, 2018 IL App (3d) 160165, ¶ 16. That is true, but we fail to

see how appellate review of the determination of cause and prejudice creates any new right.

Defendant might have a statutory right to an initial screening free from the State’s input, but it



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does not follow that a violation of that right necessarily requires reversal.         Violations of

procedural rights conferred by statute in criminal prosecutions can be subject to a harmless-error

analysis. For example, section 115-1 of the Code provides that “[a]ll prosecutions except on a

plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant

waives a jury trial in writing.” (Emphasis added.) 725 ILCS 5/115-1 (West 2016). Yet in

People v. Silas, 278 Ill. App. 3d 400, 403 (1996), we held that “[w]here *** a defendant has

made a knowing oral waiver of his right to a jury trial in open court, the absence of a written jury

waiver is harmless error and does not require reversal.”

¶ 21   Indeed, as a general rule, “automatic reversal is required only when an error is deemed

‘structural.’ ” People v. Thompson, 238 Ill. 2d 598, 608 (2010). As our supreme court has

observed, “[a]n error is typically designated as structural only if it necessarily renders a criminal

trial fundamentally unfair or an unreliable means of determining guilt or innocence.” Id. at 609.

A limited class of errors are structural. Id. Those errors include, inter alia, “a complete denial of

counsel, trial before a biased judge, racial discrimination in the selection of a grand jury, denial

of self-representation at trial, denial of a public trial, and a defective reasonable doubt

instruction.” Id. The State’s participation at the cause-and-prejudice stage of a successive

postconviction proceeding is not of the same caliber as those errors.

¶ 22   Concededly, in People v. Jolly, 2014 IL 117142, our supreme court adopted a rule of

automatic reversal for a nonstructural error: the State’s adversarial participation in a preliminary

Krankel determination. See People v. Krankel, 102 Ill. 2d 181 (1984). However, Jolly is

distinguishable because the State’s improper participation in the Krankel inquiry impeded the

development of a proper record for appellate review. That is not a concern here, because the

only parts of the record that matter are the motion for leave to file the petition and the petition



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itself. Moreover, we owe no deference to the trial court’s decision, and the State’s improper

input has absolutely no effect on our review.

¶ 23   We note that the Third District reiterated the Munson/Baller rule in People v. Partida,

2018 IL App (3d) 160581. That decision added little to the reasoning of the prior cases. The

Partida court stated that requiring trial courts to comply with the rule forbidding participation by

the State in the determination whether to grant leave “is in the best interest of promoting judicial

economy.” Id. ¶ 11. That reasoning directly contradicts Bailey, which indicates that, at least in

some cases, considerations of judicial economy militate against remand to the trial court. That

said, we do not read Bailey to hold that a reviewing court must always undertake its own review

of whether a defendant is entitled to file a successive petition. Where the decision to grant or

deny leave presents complex issues, a reviewing court may choose to remand to the trial court

for a determination that is free from the taint of the State’s participation. Here, however, the

issues are reasonably straightforward, and we choose to consider whether defendant is entitled to

leave to file a successive petition. We turn our attention to that issue now.

¶ 24   In his motion for leave to file the successive petition, defendant contended that, in the

initial postconviction proceeding, mental illness caused him to believe that postconviction

counsel was attempting to sabotage his case. As a result, defendant discharged postconviction

counsel. However, he adopted the amended petition filed by postconviction counsel. According

to defendant, the amended petition did not “contain any argument on any of the factual and legal

basis [defendant] and [postconviction counsel] consulted about, and agreed [that postconviction

counsel] would present to the court,” and after discharging counsel, he was unable to adequately

present his postconviction claim to the court.




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¶ 25    Having reviewed the successive petition, we conclude that defendant has failed to satisfy

the cause-and-prejudice test. In the successive petition, defendant claimed that he attempted to

discharge trial counsel and that continuances obtained thereafter by trial counsel were not

attributable to defendant. We addressed and rejected that argument in defendant’s appeal from

the dismissal of his initial postconviction petition. Conway, No. 2-09-0193, slip order at 11-12.

There can be no cause for failing to raise a claim in the initial proceeding when the claim was, in

fact, raised in that proceeding.

¶ 26    Defendant also claimed that a continuance requested by counsel from March 29, 2000, to

June 5, 2000, “was no longer a continuance *** that was properly attributable to the defense as

of May 4, 2000, when the court granted the defense motion to sever [the armed robbery and

escape charges].” We see no reason why severing the charges would have had any effect on the

computation of the speedy-trial period. Because the claim is meritless, the failure to raise it in

the initial proceeding was not prejudicial.

¶ 27    Finally, defendant claimed that the State improperly secured a superseding indictment

after he filed a pro se motion for dismissal on speedy-trial grounds. Defendant’s evident concern

is that the State did so to evade the speedy-trial period. We are aware of authority that the State

may not nol-pros and then refile charges for the purpose of starting the speedy-trial term anew.

See People v. Weddell, 405 Ill. App. 3d 424, 437 (2010) (citing People v. Van Schoyck, 232 Ill.

2d 330, 340 (2009)). Here, however, defendant was tried within the original speedy-trial period;

the State did not attempt to have the speedy-trial period run anew. Again, the claim is meritless,

and the failure to raise it in the initial proceeding was not prejudicial.

¶ 28                                     III. CONCLUSION




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¶ 29   For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago

County. As part of our judgment, we grant the State’s request that defendant be assessed $50 as

costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d

166, 178 (1978).

¶ 30   Affirmed.




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