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                               Appellate Court                          Date: 2019.07.15
                                                                        08:36:52 -05'00'



                  People v. Howery, 2019 IL App (3d) 160603



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            BERNON L. HOWERY, Defendant-Appellant.



District & No.     Third District
                   Docket No. 3-16-0603



Filed              March 21, 2019



Decision Under     Appeal from the Circuit Court of Kankakee County, No. 89-CF-739;
Review             the Hon. James B. Kinzer, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Peter A. Carusona, and Santiago A. Durango, of
Appeal             State Appellate Defender’s Office, of Ottawa, for appellant.

                   Jim Rowe, State’s Attorney, of Kankakee (Patrick Delfino, David J.
                   Robinson, and Justin A. Nicolosi, of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE McDADE delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Schmidt and Justice Lytton concurred in the
                   judgment and opinion.
                                               OPINION

¶1      Defendant, Bernon L. Howery, appeals the denial of his pro se motion for leave to file a
     successive postconviction petition and motion for discovery. We affirm.

¶2                                         I. BACKGROUND
¶3        Defendant is currently serving a sentence of life imprisonment after a jury found him guilty
     of four counts of first degree murder (Ill. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)(2)), four counts of
     felony murder (id. ¶ 9-1(a)(3)), and one count of aggravated arson (id. ¶ 20-1.1). The evidence
     presented at trial was exhaustively reviewed in defendant’s direct appeal. People v. Howery,
     178 Ill. 2d 1 (1997). For clarity, we will discuss only the facts relevant to the instant appeal.
¶4        On December 9, 1989, a fire occurred at the home of defendant’s ex-girlfriend, Linda
     Walls. The fire killed Walls’s four children (defendant was the father of three of the children).
¶5        At trial, the State presented expert witness John DeHann, a criminalist for the California
     Department of Justice Bureau of Forensic Services in Sacramento. Id. at 21. DeHann testified
     as to the cause and origin of the fire. Id. He investigated the scene of the fire shortly after the
     incident and explained that two separate fires occurred in the house. Id. One fire occurred in a
     pile of clothing in the basement, while the other fire occurred underneath the stairwell on the
     first floor of the house. Id. DeHann stated that the first-floor fire and the basement fire were
     two separate fires. Id. He ruled out accidental causes of the fires. Id. at 22. DeHann opined that
     the first-floor fire was deliberately started by a direct flame ignition due to the quick
     progression of the fire and the absence of an accidental basis for the fire. Id. DeHann further
     stated that the existence of two separate and unrelated fires in the home also led him to believe
     that the fires were deliberately started by someone. Id.
¶6        In defendant’s case-in-chief, he presented his own expert witness, Charles Neuf. Id. at 25.
     Neuf, an expert in forensic science, investigated the crime scene approximately 11 months
     after the fire. Id. Neuf believed that the fires on the first floor and in the basement were related.
     Id. Disagreeing with DeHann, Neuf opined that the first-floor fire caused the fire in the
     basement. Id. Neuf did not have an opinion as to the cause of the fire on the first floor. Id.
¶7        While serving his sentence, defendant appealed his convictions and sentence and initiated
     several collateral proceedings, which are not relevant to this appeal. People v. Howery, No.
     3-05-0674 (2007) (unpublished order under Illinois Supreme Court Rule 23); People v.
     Howery, 2011 IL App (3d) 090650-U. Relevant to this appeal is defendant’s pro se motion for
     leave to file a successive postconviction petition. Defendant’s motion alleged that new
     developments in the field of fire and arson forensic science constituted new evidence of his
     actual innocence. Defendant failed to bring this claim in his previous postconviction petition
     because the new developments in fire and arson forensic science did not exist at the time he
     filed his first postconviction petition. Defendant believed that the new developments
     demonstrated that the State’s expert witness’s opinion at trial was based on misleading and
     antiquated beliefs about fire technology.




                                                   -2-
¶8         Defendant attached a proposed pro se successive postconviction petition to his motion for
       leave.1 The proposed successive petition repeated defendant’s claim that new developments
       demonstrated that the expert testimony as to the cause of the fire was based on misleading and
       antiquated beliefs that were now proven unreliable. Defendant’s pro se successive
       postconviction petition did not identify which portion of the State’s forensic expert’s
       testimony he believed was now unreliable. Defendant did not explain how fire science had
       changed or how those changes would have affected the outcome in his case. Defendant also did
       not explain how the changes in fire and arson technology demonstrated his innocence.
¶9         After review, the circuit court found that defendant’s pro se motion for leave and the
       proposed successive postconviction petition failed to allege any prejudice. The court also
       found that defendant failed to allege that he was actually innocent. The court concluded that
       defendant’s pleadings were nothing more than a request for a court-ordered fishing expedition.
       The court denied defendant leave to file his successive postconviction petition.
¶ 10       Next, defendant filed a motion to reconsider. The motion again argued that changes in fire
       science supported his actual innocence claim. Defendant then asserted that the State should be
       ordered to provide defendant with evidence regarding the new developments in fire science,
       including a copy of NFPA 921: Guide for Fire and Explosion Investigations (Nat. Fire
       Protection Ass’n 2017 ed.) (NFPA 921). Defendant also filed a free-standing motion for
       discovery, requesting a copy of NFPA 921.2 Defendant asserted that he was unsuccessful in
       obtaining the discovery on his own. Defendant claimed that the publication was essential to his
       actual innocence claim. According to defendant, “NFPA 921’s explanations of non-arson
       causes for multiple non-communicating fires can probably make sense of the two fires in the
       instant case, eliminating defendant as the arsonist, and proving defendant is an innocent man.”
¶ 11       Ultimately, the circuit court denied defendant’s motion to reconsider. The court also
       denied defendant’s free-standing motion for discovery on the basis that defendant failed to
       provide any legal authority to support the motion.

¶ 12                                          II. ANALYSIS
¶ 13        For clarity, we note that defendant frames his argument on appeal by claiming that the
       circuit court erred in denying his pro se motion for leave to file a successive postconviction
       petition and his free-standing motion for discovery. However, defendant does not ask this
       court to reverse the denial of his motion for leave to file a successive postconviction petition.
       Instead, defendant asks for the cause to be remanded “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.” While defendant condenses the court’s rulings on each
       motion into a single argument, we discuss each motion (for leave to file a successive
       postconviction petition and for discovery) separately.


           1
             Defendant raised other claims in his proposed successive postconviction petition. However,
       defendant does not make any argument that these claims have merit in this appeal. We will not address
       the points not argued by defendant on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).
           2
             Defendant’s motion to reconsider and motion for discovery also raised other issues which are not
       challenged on appeal. Therefore, we do not address those contentions. See Ill. S. Ct. R. 341(h)(7) (eff.
       Nov. 1, 2017).

                                                      -3-
¶ 14        First, defendant contends that the circuit court should have allowed him leave to file a
       successive postconviction petition because his allegations sufficiently alleged a colorable
       claim of actual innocence. Alternatively, defendant contends that his motion for leave to file a
       successive postconviction petition sufficiently alleged cause and prejudice. Specifically,
       defendant contends that developments in fire and arson forensic science after his trial call into
       question the reliability of the State’s forensic expert’s testimony as to the cause of the fire.
¶ 15        Initially, we note that defendant’s entire argument on this issue is based on NFPA 921.
       That publication was not included in either defendant’s motion for leave to file a successive
       postconviction petition or his proposed successive postconviction petition. In fact, defendant
       did not reference NFPA 921 at all in his argument. As he did not include this information in his
       proposed successive postconviction petition, it is not properly before this court. People v.
       Anderson, 375 Ill. App. 3d 121, 139 (2006) (appellate court cannot consider evidence “for the
       first time on appeal without it first being attached to defendant’s postconviction petition for
       initial scrutiny and evaluation at the trial court level”). Based on the record before us, we find
       defendant’s unsupported claim fails to meet either standard a defendant is required to meet to
       obtain leave to file a successive postconviction petition.
¶ 16        There are two ways a defendant may obtain leave of court to file a successive
       postconviction petition. First, a defendant must establish cause and prejudice for the failure to
       raise the claim earlier. People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). Or, second,
       defendant must show actual innocence. Id. Under either standard, a defendant not only has the
       burden to obtain leave of court, but also “must submit enough in the way of documentation to
       allow a circuit court to make that determination.” People v. Tidwell, 236 Ill. 2d 150, 161
       (2010).
¶ 17        Here, defendant’s claim failed to identify the evidence that he believed was unreliable, how
       fire and arson forensic science had changed since his trial, how the new developments affected
       the fairness of his trial, or how these developments demonstrated his innocence. Defendant’s
       claim also lacked any documentary support. At best, defendant merely speculated that possible
       changes in fire and arson forensic science may have affected the outcome in his case.
       Defendant, therefore, failed to satisfy the cause and prejudice standard and the actual
       innocence standard. Thus, the circuit court did not err when it denied defendant’s motion for
       leave to file a successive postconviction petition.
¶ 18        Having found that the court did not err when it denied defendant leave to file a successive
       postconviction petition, we turn to defendant’s argument that the court erred in denying his
       freestanding motion for discovery. In the motion, defendant sought to obtain NFPA 921
       (which defendant’s appellate counsel has now obtained and discussed at length in his appellate
       brief), which he claimed was essential to his successive postconviction argument. Defendant
       contends that the court erred when it denied the motion for discovery based on defendant’s
       failure to provide statutory authority allowing discovery. Therefore, defendant asks this court
       to remand the matter to exercise its discretion and rule on the motion. Because defendant filed
       his motion for discovery after the circuit court denied defendant leave to file a successive
       postconviction petition, we find the discovery request was untimely.
¶ 19        Both parties agree that 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 (1988); People v. Fair, 193 Ill. 2d 256, 264-65 (2000). For
       example, it is clear that postconviction discovery is allowed while a postconviction petition

                                                   -4-
       remains pending. See People v. Pinkston, 2013 IL App (4th) 111147, ¶ 18. The instant case,
       however, is unique in that the request for discovery occurred after the circuit court denied
       defendant’s motion for leave to file a successive postconviction petition. After an exhaustive
       review of the law, we were unable to find any published decision that addresses the unique
       procedural posture in this case. Nevertheless, under the present circumstances, we find that the
       court did not err when it denied defendant’s discovery motion.
¶ 20        Once a motion for leave to file a successive postconviction petition is denied, a defendant
       can either file a motion to reconsider or challenge the denial on appeal. People v. Blair, 215 Ill.
       2d 427, 451 (2005). A motion for discovery is neither. “The purpose of a motion to reconsider
       is to bring to the court’s attention (1) newly discovered evidence that was not available at the
       time of the first hearing, (2) changes in the law, or (3) errors in the court’s application of
       existing law.” People v. Teran, 376 Ill. App. 3d 1, 4-5 (2007) (citing Merchants Bank v.
       Roberts, 292 Ill. App. 3d 925, 929 (1997)). Likewise, an appeal is meant to challenge matters
       addressed below, and a party is generally barred from raising new issues on appeal. See Ill. S.
       Ct. R. 615(a).
¶ 21        Here, defendant’s belated request for discovery was procedurally improper. Defendant’s
       motion sought to obtain evidence that he speculated may support his successive postconviction
       claims. Simply put, this is not the purpose of a motion to reconsider. Moreover, the
       information defendant requested was not newly discovered, as he was aware of the materials
       he sought at the time he filed his motion for leave to file a successive postconviction petition.
       See generally People v. English, 2014 IL App (1st) 102732-B, ¶ 49 (noting that evidence is not
       considered newly discovered “if it presents facts already known to the defendant, even if the
       source of those facts was unknown, unavailable or uncooperative”). Accordingly, we find no
       basis for the circuit court to consider defendant’s motion for discovery.
¶ 22        Even if we were to find that the circuit court had discretion to rule on defendant’s belated
       discovery motion, we find that remand is unnecessary in this case. Defendant’s appellate
       counsel is in possession of NFPA 921, as he has thoroughly reviewed its contents in his
       appellate brief. Defendant’s appellate counsel can provide defendant with this information.
       Should defendant choose to file a new motion for leave to file a successive postconviction
       petition, he can incorporate NFPA 921 into his pleadings.
¶ 23        In reaching our conclusion, we reject defendant’s reliance on Pinkston, 2013 IL App (4th)
       111147, for the proposition that this court should remand the matter for the limited purpose of
       allowing the court to consider the merits of his motion for discovery. In Pinkston, defendant
       filed a pro se postconviction petition. Id. ¶ 1. While the postconviction proceedings were still
       ongoing, defendant filed a motion for discovery seeking exculpatory evidence. Id. ¶ 6. The
       circuit court denied the motion for discovery based on its belief that postconviction discovery
       was not allowed. Id. ¶ 7. The appellate court disagreed, noting that the circuit court had the
       inherent authority to allow postconviction discovery. Id. ¶ 13. The appellate court also noted
       that the circuit court committed error by refusing to exercise its discretion due to the court’s
       mistaken belief that it lacked such discretion. Id. ¶ 14. Therefore, the appellate court remanded
       the cause to allow the circuit court to exercise its discretion regarding defendant’s motion for
       discovery. Id. ¶ 20.
¶ 24        Unlike the defendant in Pinkston, defendant here requested discovery after the circuit court
       denied his motion for leave to file a successive postconviction petition. This procedural
       distinction is significant. As noted above (supra ¶ 19), the proceedings in this case were

                                                    -5-
       completed prior to the filing of the motion for discovery. Discovery at this stage of the
       proceedings would not affect the court’s denial of defendant’s request for leave to file a
       successive postconviction petition. Defendant in Pinkston, by contrast, filed his motion for
       discovery while his pro se postconviction petition remained pending. See 725 ILCS 5/122-5
       (West 2016). In other words, the circuit court in Pinkston had not yet made a determination on
       defendant’s postconviction petition.

¶ 25                                     III. CONCLUSION
¶ 26      The judgment of the circuit court of Kankakee County is affirmed.

¶ 27      Affirmed.




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