                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Little, 2012 IL App (5th) 100547




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



District & No.             Fifth District
                           Docket No. 5-10-0547


Filed                      October 9, 2012


Held                       Defendant lost his right to a direct appeal through no fault of his own and
(Note: This syllabus       he used his original postconviction petition to reinstate his right to a
constitutes no part of     direct appeal and, therefore, his subsequent postconviction petition was
the opinion of the court   not a successive petition without leave of the trial court, and the denial of
but has been prepared      the petition on that ground was reversed and the cause was remanded for
by the Reporter of         second-stage proceedings.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Randolph County, No. 02-CF-160; the
Review                     Hon. Brian Babka, Judge, presiding.



Judgment                   Judgment vacated; cause remanded.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Deborah K. Pugh, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Randall Rodewald, State’s Attorney, of Chester (Patrick Delfino, Stephen
                            E. Norris, and Kelly M. Stacey, all of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE WEXSTTEN delivered the judgment of the court, with
                            opinion.
                            Justices Spomer and Stewart concurred in the judgment and opinion.




                                              OPINION

¶1          In September 2010, the trial court entered a written order denying the defendant, Kelvin
        Little, leave to file a pro se petition for postconviction relief. Contending that the trial court
        wrongly construed his petition as a “successive” petition, the defendant argues that we should
        vacate the court’s judgment and remand his cause for further proceedings. For the reasons
        that follow, we agree.

¶2                                         BACKGROUND
¶3          In the fall of 2002, following separate jury trials, the defendant was found guilty of one
        count of attempted escape (720 ILCS 5/8-4(a), 31-6(a) (West 2002)) and one count of
        aggravated battery (720 ILCS 5/12-4(b)(6) (West 2002)). In December 2002, the trial court
        sentenced the defendant to two consecutive three-year terms on the convictions. Because the
        underlying offenses were committed while the defendant was in custody on separate felony
        charges unrelated to the present case, the court further ordered that the sentences be served
        consecutively to the sentences previously imposed on the convictions on the separate
        charges. 730 ILCS 5/5-8-4(h) (West 2002). In January 2003, the defendant filed a timely
        notice of appeal.
¶4          In August 2004, we affirmed the defendant’s convictions on direct appeal, but because
        it was “not clear from the record what motivated the trial court to order that the sentences
        imposed on [the] defendant’s aggravated battery and attempted escape convictions be served
        consecutively to each other,” we remanded for resentencing. People v. Little, No. 5-03-0028,
        order at 2 (2004) (unpublished order under Supreme Court Rule 23). In October 2004,
        indicating that it was of the opinion that consecutive sentences were necessary to protect the
        public from further criminal conduct by the defendant (730 ILCS 5/5-8-4(b) (West 2002)),
        the trial court resentenced the defendant and again imposed consecutive three-year terms of


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     imprisonment on his convictions. The court also advised the defendant that he had 30 days
     to appeal from the judgment.
¶5       In April 2007, the defendant sent a letter to the circuit clerk asking whether his trial
     attorney had ever filed a notice of appeal following his resentencing hearing. The defendant
     indicated that he had wanted to pursue an appeal, that he had asked his attorney to file a
     notice of appeal on his behalf, and that his attorney had agreed to do so. In June 2007, the
     defendant sent a letter to the State Appellate Defender also inquiring about the situation. In
     response, the State Appellate Defender advised the defendant that because the opportunity
     to pursue a direct appeal had “long since passed,” filing a petition pursuant to the Post-
     Conviction Hearing Act (the Act) (725 ILCS 5/122-1 to 122-8 (West 2006)) was his “only
     recourse.”
¶6       In December 2007, claiming that he had been denied the effective assistance of counsel
     due to his trial attorney’s failure to file a notice of appeal following his resentencing hearing,
     the defendant filed a pro se petition for postconviction relief pursuant to the Act. The
     defendant alleged that although he had advised his trial attorney that he had wanted to appeal
     from the trial court’s resentencing order, his attorney had failed to file a timely notice, and
     as a result, “his time for filing an appeal had expired.” The defendant thus asked that the trial
     court grant him leave to file a late notice of appeal.
¶7       In January 2008, the trial court summarily dismissed the defendant’s 2007 petition as
     untimely filed. The defendant appealed, and citing People v. Boclair, 202 Ill. 2d 89, 99
     (2002) (holding that the Act does not authorize the first-stage dismissal of a postconviction
     petition on the basis of untimeliness), we reversed. People v. Little, No. 5-08-0061 (2008)
     (unpublished order under Supreme Court Rule 23). On remand, in its answer to the
     defendant’s petition, the State advised that it had “no objection to the relief requested by the
     defendant.”
¶8       In November 2008, the trial court granted the defendant’s 2007 petition for
     postconviction relief and gave him 30 days to file a notice of appeal from the court’s October
     2004 resentencing order. The defendant subsequently filed a timely notice, and on appeal,
     he argued that the trial court had abused its discretion when resentencing him “because there
     was not a sufficient basis upon which to impose consecutive sentences for the protection of
     the public.” In September 2009, noting, inter alia, that the defendant had a lengthy criminal
     record dating back to 1986, we rejected the defendant’s claim of error and affirmed the trial
     court’s judgment. People v. Little, No. 5-08-0635 (2009) (unpublished order under Supreme
     Court Rule 23).
¶9       In July 2010, the defendant filed a second pro se postconviction petition pursuant to the
     Act. In his second petition, which the trial court aptly described as “somewhat
     incomprehensible,” the defendant alleged, inter alia, that he had not received a preliminary
     hearing on the charges underlying his convictions; that neither he nor his appellate counsel
     had been given a complete and adequate record of the trial proceedings; that appellate
     counsel had provided ineffective assistance for proceeding on direct appeal without a
     complete and adequate record; that the judge who had presided over his trial proceedings had
     done so under a conflict of interest; and that due to “an incorrect application of the


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       sentencing guidelines,” the sentences imposed on his convictions were excessive.
¶ 10        In September 2010, the trial court entered a written order disposing of the defendant’s
       second pro se postconviction petition. Noting that the defendant had filed a “first petition”
       in December 2007, the court construed the second petition as a request for leave to file a
       successive petition and held that the defendant had failed to satisfy the requisite cause-and-
       prejudice test. The court also noted that the defendant’s second petition did not allege actual
       innocence. The court thus denied what it construed as the defendant’s “request for leave to
       file a successive post-conviction petition.” The defendant subsequently filed a timely notice
       of appeal.

¶ 11                                        DISCUSSION
¶ 12        The Act sets forth a procedural mechanism through which a defendant can assert that “in
       the proceedings which resulted in his or her conviction there was a substantial 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 2010). The Act provides a three-stage process for the
       adjudication of postconviction petitions in noncapital cases. Boclair, 202 Ill. 2d at 99. At the
       first stage, the trial court independently assesses a defendant’s petition, and if the court
       determines that the petition is “frivolous” or “patently without merit,” the court can
       summarily dismiss it. 725 ILCS 5/122-2.1(a)(2) (West 2010); People v. Edwards, 197 Ill. 2d
       239, 244 (2001). If a postconviction petition is not dismissed at the first stage, it advances
       to the second stage, where an indigent defendant can obtain appointed counsel and the State
       can move to dismiss his petition. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2010). At the
       second stage, the trial court determines whether the defendant has made a substantial
       showing of a constitutional violation, and if a substantial showing is made, the defendant’s
       petition proceeds to the third stage for an evidentiary hearing; if no substantial showing is
       made, the petition is dismissed. Edwards, 197 Ill. 2d at 246.
¶ 13        “The Act is not a substitute for an appeal, but rather, is a collateral attack on a final
       judgment.” People v. Edwards, 2012 IL 111711, ¶ 21. “Thus, ‘[t]he judgment of the
       reviewing court on a previous appeal is res judicata as to all issues actually decided, and any
       claim that could have been presented to the reviewing court in the direct appeal is, if not
       presented, thereafter barred under the doctrine of waiver.’ ” People v. Stewart, 121 Ill. 2d 93,
       104 (1988) (quoting People v. Silagy, 116 Ill. 2d 357, 365 (1987)).
¶ 14        “The Act generally limits a defendant to one post-conviction petition.” People v. Holman,
       191 Ill. 2d 204, 210 (2000). “Successive postconviction petitions are disfavored under the
       Act[,] and a defendant attempting to institute a successive postconviction proceeding,
       through the filing of a second or subsequent postconviction petition, must first obtain leave
       of court.” People v. Gillespie, 407 Ill. App. 3d 113, 123 (2010). To obtain leave of court to
       file a successive petition, a petitioner must either demonstrate “actual innocence” or satisfy
       the cause-and-prejudice test codified in section 122-1(f) of the Act (725 ILCS 5/122-1(f)
       (West 2010)). Edwards, 2012 IL 111711, ¶¶ 22-24. “In this respect, section 122-1(f) of the
       Act acts as a procedural hurdle to any consideration of the claims in the postconviction
       petition.” People v. McDonald, 405 Ill. App. 3d 131, 135 (2010). Moreover, “until such time


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       as leave is granted, a successive petition, though received or accepted by the circuit clerk,
       will not be considered ‘filed’ for purposes of further proceedings under the Act.” People v.
       Tidwell, 236 Ill. 2d 150, 158 (2010). The denial of leave to file a successive postconviction
       petition is reviewed de novo (McDonald, 405 Ill. App. 3d at 135), as is the construction of
       the Act itself (Tidwell, 236 Ill. 2d at 156).
¶ 15        Relying primarily on federal habeas cases, the defendant argues that “where, as here, a
       petitioner files a second petition after a direct appeal that was ordered in response to an
       earlier petition, the second petition is not successive” for purposes of the Act. The defendant
       contends that the trial court thus erred in treating his second petition as a successive petition
       and subjecting it to the cause-and-prejudice test set forth in section 122-1(f).
¶ 16        Under federal law, “a petitioner incarcerated pursuant to a federal judgment cannot bring
       a ‘second or successive’ motion for habeas relief, unless he or she obtains permission from
       a court of appeals.” Urinyi v. United States, 607 F.3d 318, 320 (2d Cir. 2010) (per curiam).
       The phrase “ ‘second or successive’ ” is not defined by statute (Whab v. United States, 408
       F.3d 116, 118 (2d Cir. 2005)), but “[t]he Supreme Court has made clear that not every
       numerically second petition is ‘second or successive’ for purposes of [federal habeas
       review]” (In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006)). The Supreme Court has further
       held that the phrase “second or successive” is a “term of art” (Slack v. McDaniel, 529 U.S.
       473, 486 (2000)) whose meaning must be determined in “statutory context” and “with
       respect to the judgment challenged” (Magwood v. Patterson, 561 U.S.___, ___, 130 S. Ct.
       2788, 2797 (2010)).
¶ 17        In Urinyi, after pleading guilty to federal drug charges, the defendant filed a habeas
       petition “arguing that he had been denied effective assistance of counsel because his attorney
       had failed to file a timely notice of appeal, despite [the defendant’s] explicit instruction that
       the attorney do so.” Urinyi, 607 F.3d at 319. Following an evidentiary hearing, the trial court
       granted the defendant’s petition and allowed him to file a late notice of appeal. Id. After the
       defendant pursued a direct appeal, he filed a second habeas petition in which he attacked his
       conviction and sentence. Id. at 320. Finding that the petition was a “ ‘second or successive’ ”
       petition, the trial court determined that the defendant had to obtain leave from the court of
       appeals before filing it. Id. The court of appeals disagreed, however, noting that under federal
       law, every prisoner is afforded one full opportunity to seek collateral review of a judgment.
       Id. The court thus held that because the defendant’s first petition “sought only reinstatement
       of [the] right to a direct appeal,” his second petition was actually his first opportunity to seek
       collateral review and was therefore not a “ ‘second or successive’ ” petition. Id. at 321. The
       court of appeals further noted that a majority of the federal circuits had similarly held that
       a defendant who is forced to use a habeas petition to reinstate his right to a direct appeal
       should not be denied the opportunity to lodge a collateral attack, but should rather be
       “restored to the procedural posture he would have enjoyed if he had been represented by
       effective counsel who had timely filed a notice of appeal.” Id.; see also Storey v. Vasbinder,
       657 F.3d 372, 378 (6th Cir. 2011) (joining the “majority of circuits” holding that a habeas
       petition “filed after a remedial appeal, ordered in response to an earlier petition, is not second
       or successive”).
¶ 18        Our supreme court has noted that it “has in the past relied on habeas case law in

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       interpreting and applying the Act” and that such reliance is particularly appropriate when
       evaluating provisions patterned after federal law. People v. Hodges, 234 Ill. 2d 1, 12 (2009).
       With respect to the legislative history of section 122-1(f), the court has further noted:
            “In discussing the first sentence of subsection (f), which provides that ‘[o]nly one
            petition may be filed by a petitioner under this Article without leave of the court,’
            Senator Dillard stated: ‘This would make Illinois law consistent with federal law by
            letting a prisoner have one post-conviction petition without court permission while
            requiring that he or she formally seek leave of the court to file additional petitions.’ ”
            (Emphasis in original.) Edwards, 2012 IL 111711, ¶ 28.
¶ 19        With this deference in mind, we adopt for purposes of the Act the reasoning set forth in
       Urinyi and employed by a majority of the federal circuits. We find the reasoning well-
       founded and thus hold that where a defendant files an initial postconviction petition seeking
       only to reinstate the right to a direct appeal that was lost due to counsel’s ineffectiveness, a
       subsequent petition is not a successive petition for purposes of section 122-1(f). Federal law
       aside, we believe that this holding is also consistent with Illinois Supreme Court precedent
       regarding the Act and the right to a direct appeal.
¶ 20        “A criminal defendant has no federal constitutional right to a direct appeal, but under the
       Illinois Constitution the right to appeal a criminal conviction is fundamental.” People v.
       Ross, 229 Ill. 2d 255, 268 (2008); see also People v. Wright, 311 Ill. App. 3d 1042, 1046
       (2000) (noting that “[i]n Illinois[,] there is a constitutional and statutory right to appeal a
       criminal conviction”). “A defendant whose attorney never filed a notice of appeal is entitled
       to that appeal, not its functional equivalent.” Ross, 229 Ill. 2d at 269. Our supreme court has
       accordingly held that the Act “is flexible enough to include leave to file a late notice of
       appeal among the remedies available to a trial court in a postconviction proceeding” and that
       “when a postconviction petitioner demonstrates that defense counsel was ineffective for
       failing to file a notice of appeal, the trial court may allow the petitioner leave to file a late
       notice of appeal.” Id. at 271. Referencing instances where “successive” postconviction
       petitions have been allowed when the proceedings on the original petitions were “virtual
       nullities,” our supreme court has further held that the Act affords every imprisoned defendant
       “ ‘one complete opportunity to show a substantial denial of his constitutional rights.’ ”
       People v. Free, 122 Ill. 2d 367, 376-77 (1988) (quoting People v. Logan, 72 Ill. 2d 358, 370
       (1978)).
¶ 21        With these principles in mind, we conclude that in statutory context, section 122-1(f)’s
       reference to “one petition *** without leave of the court” (725 ILCS 5/122-1(f) (West 2010))
       refers to one complete opportunity to collaterally attack “the proceedings which resulted in
       his or her conviction” (725 ILCS 5/122-1(a)(1) (West 2010)). As previously indicated, we
       further find that where, as here, a defendant has been denied that opportunity because he used
       an initial petition solely to reinstate his right to a direct appeal that was forfeited through no
       fault of his own, he should be “restored to the procedural posture he would have enjoyed if
       he had been represented by effective counsel who had timely filed a notice of appeal.”
       Urinyi, 607 F.3d at 321. In other words, because the defendant’s “first petition was filed only
       to rescue his right of appeal,” it was not a “true collateral attack” and should not be counted
       as such. Johnson v. United States, 362 F.3d 636, 638 (9th Cir. 2004). The defendant was

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       therefore not required to obtain leave of court before his second petition was considered
       filed, nor was he required to either demonstrate actual innocence or satisfy section 122-1(f)’s
       cause-and-prejudice test. We thus vacate the trial court’s judgment construing the
       defendant’s 2010 petition as a request for leave to file a successive petition and denying him
       leave to file it.
¶ 22        Citing our decision in People v. Inman, 407 Ill. App. 3d 1156 (2011), the defendant next
       argues that on remand, his petition must be docketed for second-stage postconviction
       proceedings because the trial court failed to determine within 90 days whether the petition
       was frivolous or patently without merit. We agree.
¶ 23        Under section 122-2.1 of the Act, “a court is required to review a petition within 90 days
       to determine whether it is frivolous and patently without merit” or else “the court must
       docket the petition for further proceedings.” (Emphasis in original.) Inman, 407 Ill. App. 3d
       at 1162. This rule applies even if by honest mistake the trial court disposes of a
       postconviction petition on the erroneous belief that the petition was a successive petition
       brought without leave of court. Id. at 1163; People v. Carter, 383 Ill. App. 3d 795, 797-98
       (2008).
¶ 24        “Here, the court did not determine the petition to be frivolous or patently without merit
       within 90 days, because it concluded that the petition was successive.” Inman, 407 Ill. App.
       3d at 1163. “We therefore conclude that, on remand, the petition must be docketed for
       second-stage proceedings” (id.), and we accordingly reject the State’s suggestion that we
       “examine the record ourselves to determine whether [the] defendant’s postconviction petition
       was frivolous or patently without merit” (Carter, 383 Ill. App. 3d at 798).
¶ 25        We lastly observe that although an attorney’s failure to file a notice of appeal does not
       always constitute ineffective assistance of counsel (People v. Torres, 228 Ill. 2d 382, 401-04
       (2008)), situations such as that presented here could be avoided if, as is often the case, the
       trial court orders the clerk of the court to file a notice of appeal on the defendant’s behalf
       (see, e.g., id. at 392; People v. Barnett, 2011 IL App (3d) 090721, ¶ 20). Whether to appeal
       is one of the few decisions that ultimately belongs to a criminal defendant (People v.
       Clendenin, 238 Ill. 2d 302, 318 (2010)), and once a timely notice of appeal has been filed for
       a defendant, he or she can subsequently decide whether to actually pursue the appeal or allow
       it to be dismissed for want of prosecution.

¶ 26                                     CONCLUSION
¶ 27       For the foregoing reasons, we vacate the trial court’s judgment and remand the
       defendant’s petition for second-stage proceedings under sections 122-4 through 122-6 of the
       Act (725 ILCS 5/122-4 to 122-6 (West 2010)).

¶ 28      Judgment vacated; cause remanded.




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