                                        2018 IL App (3d) 160165

                                 Opinion filed June 27, 2018
     _____________________________________________________________________________

                                                IN THE


                                   APPELLATE COURT OF ILLINOIS


                                           THIRD DISTRICT


                                                  2018 


     THE PEOPLE OF THE STATE OF                     )       Appeal from the Circuit Court
     ILLINOIS,                                      )       of the 12th Judicial Circuit,
                                                    )       Will County, Illinois,
            Plaintiff-Appellee,                     )
                                                    )       Appeal No. 3-16-0165
            v.                                      )       Circuit No. 05-CF-510
                                                    )
     DAVID F. BALLER,                               )       Honorable
                                                    )       Amy M. Bertani-Tomczak,
            Defendant-Appellant.                    )       Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court.
           Justice Holdridge specially concurred, with opinion.
           Justice Schmidt dissented, with opinion.
     _____________________________________________________________________________

                                               OPINION

¶1          Defendant, David F. Baller, appeals from the trial court’s order denying his motion for

     leave to file a successive postconviction petition. On appeal, defendant argues the State

     erroneously filed an objection to his motion for leave and the court erroneously considered the

     State’s objection in denying defendant leave. We vacate and remand with directions.

¶2                                              FACTS

¶3          Defendant entered an open plea of guilty to one charge of aggravated criminal sexual

     assault (720 ILCS 5/12-14(a)(8) (West 2002)). The trial court admonished defendant that he
     could receive a potential sentence of 6 to 30 years’ imprisonment and the sentence would be

     served consecutive to the prison sentence defendant was then serving. Defendant indicated he

     understood the potential sentence. The court sentenced defendant to 30 years’ imprisonment. The

     court ordered the sentence to run consecutively to the sentence imposed in Cook County case

     No. 05-CR-0778501.

¶4              On November 18, 2011, defendant filed a pro se postconviction petition, which raised

     claims of ineffective assistance of trial and appellate counsel. The court summarily dismissed the

     petition. On appeal, we affirmed the court’s dismissal. People v. Baller, 2014 IL App (3d)

     120214-U.

¶5              On June 19, 2015, defendant filed a pro se motion for leave to file a successive

     postconviction petition. The State filed a written objection to defendant’s motion. At a

     subsequent court date, when only the State was present, the court denied defendant’s motion,

     stating:

                              “I’ve had a chance to review the defendant’s petition for leave to file a

                       successive post conviction [sic]. I also had a chance to read the State’s motion

                       to—or your objection, and I’m going to grant your objection. I’m not going to

                       allow him to file a successive petition for post-conviction relief.”

     Defendant appeals from the trial court’s denial of his motion for leave to file a successive

     postconviction petition.

¶6                                                 ANALYSIS

¶7              Defendant argues the court impermissibly relied on input from the State before denying

     defendant’s motion for leave to file a successive postconviction petition. Defendant requests a

     reversal of the order denying his motion for leave and asks this court to remand the matter for the



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     trial court to consider defendant’s motion anew, without input from the State. The State agrees

     the trial court should not have considered the State’s position before denying defendant’s request

     to file a successive postconviction petition. However, the State asserts that remand is

     unnecessary. On appeal, the State requests this court to affirm the trial court’s order because

     defendant’s motion did not adequately allege cause and prejudice.

¶8          The issue of whether reversible error arises when a trial court takes the State’s position

     into consideration before ruling on a defendant’s motion seeking leave to file a successive

     postconviction petition was recently addressed in People v. Bailey, 2017 IL 121450. In Bailey,

     the supreme court held “it is premature and improper for the State to provide input to the court

     before the court has granted a defendant’s motion for leave to file a successive [postconviction]

     petition.” (Emphasis added.) Id. ¶ 20. Ultimately, the supreme court found section 122-1(f) of the

     Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2016)) requires the trial court to

     conduct an independent inquiry, without input from the State, before determining whether a

     defendant is entitled to receive the requested leave necessary to file a successive postconviction

     petition. Bailey, 2017 IL 121450, ¶ 24.

¶9          In People v. Munson, 2018 IL App (3d) 150544, this court had an opportunity to apply

     Bailey to set aside a trial court’s decision granting the State’s motion to dismiss the defendant’s

     motion for leave to file a successive postconviction petition. We further found that section 122-1

     of the Act expressly contemplates the filing of the petition in the “ ‘trial court.’ ” Id. (quoting 725

     ILCS 5/122-1 (West 2014)). Therefore, consistent with the spirit of Bailey and plain language of

     the Act, we remanded the cause with directions for the trial court to conduct an independent

     determination pertaining to whether defendant’s motion for leave satisified the requirement of

     cause and prejudice. Id. ¶ 12.



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¶ 10          In this case, the State also opposed defendant’s motion for leave to file a successive

       postconviction petition in the trial court. Here, the court considered the State’s opposition before

       denying defendant’s motion. On appeal, both parties agree the trial court’s approach was

       incorrect in light of Bailey. Consequently, we conclude that remand to the trial court for new

       proceedings on defendant’s motion, held without input from the State, is appropriate.

¶ 11          The dissenting justice seems to agree that the trial court erred by considering the State’s

       input but contends a remand in this case is not necessary. Specifically, the dissenting justice

       declares our approach to remand the matter to the trial court in Munson misconstrues Bailey and

       was “wrongly decided.” Infra ¶ 27. Rather than remanding the matter in the case at bar, the

       dissent would simply affirm the trial court’s incorrect decision. Such an approach by the dissent

       not only affirms the trial court’s erroneous procedures but inexplicably repeats the same error by

       declaring the motion to be insufficient after adopting the State’s position on cause and prejudice,

       as expressly argued by the State in this appeal.

¶ 12          We recognize that the Bailey court analyzed the contents of Bailey’s motion for leave to

       file a supplemental postconviction petition. Bailey, 2017 IL 121450, ¶¶ 42-46. However, unlike

       this court, the supreme court has been vested with broad supervisory authority by the Illinois

       Constitution. Ill. Const. 1970, art. VI, § 16. These powers are not limited by any rules or means

       for their exercise. People v. Salem, 2016 IL 118693, ¶ 20.

¶ 13          It appears the dissent bristles at our holding in Munson recognizing our intermediate

       court of review does not possess the same broad supervisory authority exercised by our supreme

       court in Bailey. The dissent announces that “[t]here is nothing about a successive postconviction

       petition that would take it out of the realm of garden-variety appellate review.” Infra ¶ 29. The




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       dissent suggests its approach “has nothing to do with supervisory authority but, rather, with our

       license to affirm for any reason apparent in the record.” Infra ¶ 29.

¶ 14          While we acknowledge the generally accepted principle that an appellate court may

       affirm on any basis found in the record, we conclude this general principle does not apply in the

       case at bar. The Bailey court expressly held that “the State should not be permitted to participate

       at the cause and prejudice stage of successive postconviction proceedings.” Bailey, 2017 IL

       121450, ¶ 24. Bailey clearly held the State’s participation in the trial court constitutes error. Id.

       We presume the holding in Bailey precludes the State’s discussion of cause and prejudice before

       any court, including our court of intermediate review.

¶ 15          Here, the State’s entire seven-page appellee brief argues that defendant has failed to

       establish cause and prejudice. Clearly, the appellate prosecutor has thoughtfully participated and

       expressed the State’s views on the question of whether defendant’s motion in the trial court

       established cause and prejudice. Ironically, the dissent relies on the State’s argument to the point

       of adopting, verbatim, the State’s rationale that “[d]efendant’s ignorance of the law cannot

       amount to cause sufficient to explain his failure to bring this claim in his initial postconviction

       proceeding.” Infra ¶ 26. This is simply not the isolationist review required by Bailey.

¶ 16          Thus, we emphasize that the 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. People v. De La Paz, 204 Ill. 2d 426, 432 (2003). 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. Bailey, 2017 IL 121450,

       ¶ 24. The only way to honor these holdings is to reset the scales of justice and remand the matter



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       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.

¶ 17                                              CONCLUSION

¶ 18          The trial court’s order denying defendant’s motion for leave to file a successive

       postconviction petition is vacated, and the matter is remanded with directions for the trial court

       to conduct a de novo review of defendant’s motion prior to allowing any input from the State.

       Defendant’s request to order the motion to be heard by a different judge is denied.

¶ 19          Vacated and remanded with directions.

¶ 20          JUSTICE HOLDRIDGE, specially concurring:

¶ 21          While I agree with the majority’s reversal and remand of this case, I respectfully deviate

       from its analysis.

¶ 22          In Bailey, 2017 IL 121450, ¶ 24, the supreme court expressly held “that the State should

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

       proceedings.” The supreme court observed that “although the Act does not expressly prohibit the

       State’s input, we find that the Act contemplates an independent determination by the circuit

       court.” Id. The supreme court reiterated this holding throughout the 24 paragraphs that proceeded

       it. See id. ¶¶ 25, 27, 39, 48. Following this clear delineation of a rule that requires “an

       independent determination by the circuit court” (emphasis added) (id. ¶ 24), the supreme court

       curiously proceeded to review Bailey’s motion outside of the circuit court and after considering

       the State’s argument that the “defendant’s motion is deficient on its face.” Id. ¶¶ 41-46.

¶ 23          The instant case presents a scenario that is procedurally similar to Bailey. Following the

       circuit court’s erroneous consideration of the State’s objection to the defendant’s motion for

       leave, the State argued against the merits of the defendant’s motion in its appellee’s brief. In light



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       of the State’s continued objection, and out of an abundance of caution, I agree that the case must

       be remanded for the circuit court to make an independent determination of whether the defendant

       has shown cause and prejudice. If we affirm the denial of the defendant’s motion, it is difficult to

       say that our decision was not influenced, at least in some respect, by the State’s appellate

       argument against the motion. See id. ¶ 33. Such influence from the State would clearly violate

       the Bailey rule.

¶ 24           JUSTICE SCHMIDT, dissenting:

¶ 25           I respectfully dissent. I agree with the majority with respect to its determination that the

       trial court erred in allowing the State to participate in the hearing to determine whether defendant

       was entitled to leave to file a successive postconviction petition. I part company with the

       majority when it determines application of Bailey requires reversal and remand. The Bailey

       court, having found error by virtue of the State’s involvement in the trial court’s determination to

       deny leave to file a successive postconviction petition, went on, in the interest of judicial

       economy, to review defendant’s motion. People v. Bailey, 2017 IL 121450, ¶¶ 41-42. Because

       the defendant’s motion failed to establish cause and prejudice, the court affirmed the trial court’s

       denial of leave. Id. ¶ 46.

¶ 26           Here, it is clear that defendant has failed to allege facts to support cause. Specifically,

       defendant alleged:

                            “2. There is cause for my failure to bring the claim contained in

                       the current petition in my previous post-conviction petition, in that

                       I was unaware of the MSR violation of due process, until my third

                       appeal in January of 2012.”




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       Defendant’s ignorance of the law cannot amount to cause sufficient to explain his failure to bring

       this claim in his initial postconviction proceeding. See People v. Evans, 2013 IL 113471, ¶ 13.

       There is no need to discuss prejudice. Notwithstanding the error, the trial court properly denied

       defendant’s motion for leave to file a successive postconviction petition. Any remand in this case

       constitutes an absolute waste of judicial resources. The majority argues that since I, after

       reviewing the record, came to the same conclusion as did the State, I must have relied upon the

       State’s input. Supra ¶ 15. Not so! Coming to the same conclusion after a review of the record is

       decidedly different than relying on the State’s argument. The defendant’s motion is deficient on

       its face; ignorance of the law is not cause.

¶ 27            The majority relies on People v. Munson, 2018 IL App (3d) 150544, for the proposition

       that we are without power to affirm in light of the error. Supra ¶¶ 9-10. I submit that Munson is

       wrongly decided. The majority determines that we must remand because, “unlike this court, the

       supreme court has been vested with broad supervisory authority by the Illinois Constitution.”

       Supra ¶ 12.

¶ 28            The Bailey court’s review of the merits of the petition for leave had nothing to do with its

       supervisory authority. Bailey, 2017 IL 121450. We can affirm for any reason apparent in the

       record. City of Champaign v. Torres, 214 Ill. 2d 234, 241 (2005); Guzzo v. Snyder, 326 Ill. App.

       3d 1058, 1064 (2001). Apparent in this record, as it was in Bailey, is the fact that the motion for

       leave to file a successive postconviction petition is utterly without merit for the reasons set forth

       above.

¶ 29            The Munson court’s train jumped the tracks in paragraph 10. Munson, 2018 IL App (3d)

       150544, ¶ 10. 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




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       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.” Id. 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 exercise of supervisory authority, appears to be an anomaly

       in Illinois jurisprudence. As in Bailey, the error below was harmless.

¶ 30          I would affirm the trial court.




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