                                       2017 IL 121450



                                         IN THE
                                SUPREME COURT
                                             OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 121450)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                         DENNIS L. BAILEY, Appellant.


                               Opinion filed October 5, 2017.



        JUSTICE BURKE delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and
     Theis concurred in the judgment and opinion.



                                          OPINION

¶1       Defendant Dennis Bailey filed in the circuit court of Will County a pro se
     motion seeking leave to file a second postconviction petition under section 122-1(f)
     of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2014)). The
     State filed a written objection to the motion, and the circuit court held a hearing at
     which the State appeared and was permitted to argue against the motion and
     petition. Defendant was neither present at the hearing nor represented by counsel.
     At the close of the hearing, the circuit court denied defendant’s motion for leave to
     file a successive postconviction petition.

¶2       Defendant appealed, arguing that the State should not have been allowed to
     provide input to the court regarding his motion for leave to file. The appellate court
     rejected this argument and affirmed the denial of the motion. People v. Bailey, No.
     3-14-0847 (2016) (unpublished summary order under Illinois Supreme Court Rule
     23(c)). We granted defendant’s petition for leave to appeal.


¶3                                     BACKGROUND

¶4        In July 2004, defendant was charged with one count of residential burglary and
     one count of disarming a peace officer. The circuit court allowed defendant’s
     public defender to withdraw, and defendant proceeded pro se at his 2005 jury trial.
     Defendant was found guilty as charged and was sentenced to concurrent prison
     terms of 24 years on each of the two counts. On direct appeal, defendant’s sole
     claim was that his waiver of trial counsel had not been voluntary and, as a result, the
     trial court erred in permitting him to represent himself at trial. The appellate court
     affirmed defendant’s convictions and sentence (People v. Bailey, No. 3-06-0139
     (2008) (unpublished order under Illinois Supreme Court Rule 23)), and we denied
     his petition for leave to appeal (People v. Bailey, No. 106964 (Ill. Nov. 26, 2008)).

¶5      In April 2009, defendant filed pro se his first petition for postconviction relief
     under section 122-1(a) of the Act (725 ILCS 5/122-1(a) (West 2014)). The trial
     court dismissed the petition on July 16, 2009, and defendant appealed. Appointed
     appellate counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley,
     481 U.S. 551 (1987), and on April 4, 2011, the appellate court granted counsel’s
     motion and affirmed the trial court’s dismissal of the postconviction petition.
     People v. Bailey, No. 3-09-0700 (2011) (unpublished summary order under Illinois
     Supreme Court Rule 23(c)).

¶6       Defendant then filed in the circuit court of Will County a pro se motion for
     leave to file a second postconviction petition pursuant to section 122-1(f) of the Act
     (725 ILCS 5/122-1(f) (West 2014)). Defendant did not address cause and prejudice
     in the motion, as required by the Act. Rather, he set forth claims alleging actual
     innocence, newly discovered evidence, denial of due process, speedy trial




                                              -2-
     violation, ineffective assistance of counsel (prior to withdrawal), and abuse of
     discretion by the trial court.

¶7        The State filed a written objection, arguing that defendant’s motion for leave to
     file a successive postconviction petition should be denied because all of the claims
     were either barred by res judicata or did not meet the cause and prejudice test
     because no facts were alleged to explain why the claims were not raised in
     defendant’s initial postconviction petition. In addition, the State argued that
     defendant alleged no facts that would support a finding of actual innocence.
     Defendant filed a response to the State’s objection, in which he attempted to
     explain the lack of evidentiary support for his motion by asserting that he expected
     a favorable ruling in a declaratory judgment suit he filed against the trial judge,
     which would provide the evidence necessary to support his claims.

¶8       On October 6, 2014, the circuit court held a hearing on defendant’s motion.
     Defendant was not present at the hearing, nor was he represented by counsel. A
     Will County assistant State’s Attorney appeared at the hearing and argued that
     defendant’s motion for leave to file should be dismissed because the claims raised
     in the successive petition could have been raised in defendant’s first postconviction
     petition and defendant failed to establish cause and prejudice for failing to do so.
     After noting defendant’s written reply to the State’s objections, the circuit court
     denied the motion and dismissed the petition.

¶9       Defendant appealed, raising as his only argument that the circuit court erred in
     permitting the State to participate at the cause and prejudice stage of the successive
     postconviction proceedings. The appellate court rejected this claim and affirmed
     the lower court’s denial of defendant’s motion in an unpublished order. People v.
     Bailey, No. 3-14-0847 (2016) (unpublished summary order under Illinois Supreme
     Court Rule 23(c)). In rejecting defendant’s claim, the appellate court relied on the
     majority holding in People v. Bailey, 2016 IL App (3d) 140207, which addressed
     the identical issue raised here. In that case, the majority, applying “the rule of law
     that parties are generally permitted to respond to motions filed by the opposing
     party,” held that the proper inquiry was whether section 122-1(f) of the Act creates
     an exception prohibiting the State from filing a response to a defendant’s motion.
     Id. ¶ 20. Finding no such prohibition in the statute, the majority held that the State
     was permitted to offer input on whether the circuit court should allow the




                                             -3-
       defendant’s motion, noting that the State’s input would “assist in bringing
       threshold deficiencies in these motions *** to the trial court’s attention.”Id. ¶ 25.

¶ 10      Defendant filed a petition for leave to appeal in this court, which we granted on
       January 25, 2017. Ill. S. Ct. R. 315 (eff. Mar. 25, 2016).


¶ 11                                       ANALYSIS

¶ 12       The single issue before us is whether, under the Post-Conviction Hearing Act
       (725 ILCS 5/122-1 et seq. (West 2014)), the denial of defendant’s motion for leave
       to file a successive postconviction petition must be reversed because the circuit
       court permitted the State to provide input on the merits of the motion and petition at
       the cause and prejudice stage. Defendant argues that the State improperly
       influenced the trial court’s decision by filing a written objection and by arguing
       against the motion at an ex parte hearing held by the court.

¶ 13       The denial of a defendant’s motion for leave to file a successive postconviction
       petition is reviewed de novo. People v. Wrice, 2012 IL 111860, ¶ 50. In addition,
       the parties agree that our review is de novo here because the issue before us is one
       of statutory construction, requiring us to determine the proper interpretation of
       section 122-1(f) of the Act, which governs successive postconviction petitions. See
       People v. Smith, 2014 IL 115946, ¶ 21. When construing a statute, our primary
       objective is to ascertain and give effect to the legislature’s intent. People v.
       Whitney, 188 Ill. 2d 91, 97 (1999). When determining the meaning of a provision of
       a statute, the court should consider the statute in its entirety, including the subject
       addressed and the legislature’s apparent objective. People v. Davis, 199 Ill. 2d 130,
       135 (2002).

¶ 14      Section 122-1(f) of the Act provides as follows:

              “(f) Only one petition may be filed by a petitioner under this Article without
          leave of the court. Leave of court 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. For
          purposes of this subsection (f): (1) a prisoner shows cause by identifying an
          objective factor that impeded his or her ability to raise a specific claim during




                                                -4-
          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.” 725 ILCS 5/122-1(f) (West 2014).

¶ 15       The Act contemplates the filing of only one postconviction petition and
       provides in section 122-3 (725 ILCS 5/122-3 (West 2014)) that “[a]ny claim of
       substantial denial of constitutional rights not raised in the original or an amended
       petition is waived.” Thus, section 122-1(f) represents an exception to this rule,
       permitting a successive petition, but only if the defendant first obtains permission
       from the court and demonstrates to the court cause and prejudice for not having
       raised the alleged errors in his or her initial postconviction petition. See Smith, 2014
       IL 115946, ¶ 33; People v. Evans, 2013 IL 113471 ¶ 18; People v. Tidwell, 236 Ill.
       2d 150, 157 (2010). The provision makes no mention of what role, if any, the State
       may play at this cause-and-prejudice stage of successive postconviction
       proceedings. In other words, the statute contains no express language either
       permitting or forbidding the State’s input when the circuit court must decide
       whether to grant or deny a defendant’s motion for leave to file a successive
       postconviction petition.

¶ 16       Defendant contends that the absence of language in the Act expressly allowing
       the State to file a responsive pleading to the motion for leave to file a successive
       postconviction petition, or to provide input on the court’s decision to allow or deny
       a successive postconviction petition, should be interpreted to mean that the
       legislature did not contemplate the State’s participation at this stage. We agree.

¶ 17       The Post-Conviction Hearing Act is a legislative creation that permits
       incarcerated defendants to collaterally attack their conviction by asserting that they
       suffered a substantial violation of their constitutional rights at trial. 725 ILCS
       5/122-1(a) (West 2014); see also People v. Edwards, 197 Ill. 2d 239, 243-44
       (2001). The Act delineates the process for litigating all postconviction petitions. In
       section 122-1(b), the Act dictates that a postconviction petition must be verified by
       affidavit and filed with the clerk of the court in which the conviction took place.
       725 ILCS 5/122-1(b) (West 2014). The filing of a postconviction petition is subject
       to certain specified time limitations, except that no such limitations apply to a claim
       of actual innocence. 725 ILCS 5/122-1(c) (West 2014).




                                                -5-
¶ 18       Interpreting the Act in People v. Gaultney, 174 Ill. 2d 410, 418 (1996), we
       determined that, when an initial postconviction petition is filed, proceedings are
       divided into three stages. At the first stage, the circuit court must review the petition
       within 90 days of its filing and determine whether the petition states the gist of a
       constitutional violation or is either frivolous or patently without merit. 725 ILCS
       5/122-2.1(a)(2) (West 2014); see also Edwards, 197 Ill. 2d at 244. If the
       postconviction petition is not dismissed at the first stage, the petition advances to
       the second stage, at which time the circuit court may appoint counsel to represent
       the defendant and to file any amendments to the petition deemed necessary. 725
       ILCS 5/122-4 (West 2014); see also Edwards, 197 Ill. 2d at 245-46. At this stage,
       the court determines whether the petition and any accompanying documentation
       make a substantial showing of a constitutional violation. Gaultney, 174 Ill. 2d at
       418; Edwards, 197 Ill. 2d at 246. If the petition fails to do so, it is dismissed. If not
       dismissed, however, the petition advances to the third stage, where the circuit court
       conducts an evidentiary hearing before deciding whether to grant relief. 725 ILCS
       5/122-6 (West 2014); Edwards, 197 Ill. 2d at 246; Gaultney, 174 Ill. 2d at 418.

¶ 19       In section 122-2.1(c), the Act provides that “[i]n considering a petition pursuant
       to this Section, the court may examine the court file of the proceeding in which the
       petitioner was convicted, any action taken by an appellate court in such proceeding
       and any transcripts of such proceeding.” 725 ILCS 5/122-2.1(c) (West 2014). In
       Gaultney, we interpreted this section to mean that, at the first stage, “the Act does
       not permit any further pleadings from the defendant or any motions or responsive
       pleadings from the State. Instead, the circuit court considers the petition
       independently, without any input from either side.” Gaultney, 174 Ill. 2d at 418.

¶ 20       Our conclusion in Gaultney that the Act does not contemplate input from the
       State until after the petition is evaluated by the court was supported by the fact that
       section 122-5 of the Act expressly provides that the State may file a motion to
       dismiss or answer the petition “[w]ithin 30 days after the making of an order
       pursuant to subsection (b) of Section 122-2.1.” 725 ILCS 5/122-5 (West 2014);
       Gaultney, 174 Ill. 2d at 418. This is the point when the petition has advanced to the
       second stage and the petitioner, if indigent, is entitled to appointed counsel. 725
       ILCS 5/122-4 (West 2014). In Gaultney, therefore, we determined that, although
       the Act did not expressly prohibit the State’s input at the first stage, “[t]he sections
       of the Act, when considered collectively, do not authorize the filing of a motion to




                                                 -6-
       dismiss at the first stage.” Gaultney, 174 Ill. 2d at 419. Prior to the second stage, the
       State’s input would be “premature and improper.” Id. Similarly, we now hold that 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 petition.

¶ 21      Although we have not previously considered the exact issue before us now,
       when interpreting section 122-1(f) of the Act in Smith, 2014 IL 115946, we held:

           “To meet the cause-and-prejudice test for a successive petition requires the
           defendant to ‘submit enough in the way of documentation to allow a circuit
           court to make that determination.’ Tidwell, 236 Ill. 2d at 161. ‘This is so under
           either exception, cause and prejudice or actual innocence.’ [People v.]
           Edwards, 2012 IL 111711, ¶ 24. Consistent with our holdings in Pitsonbarger,
           Tidwell, and Edwards, we conclude that leave of court to file a successive
           postconviction petition should be denied when it is clear, from a review of the
           successive petition and the documentation submitted by the petitioner, that the
           claims alleged by the petitioner fail as a matter of law or where the successive
           petition with supporting documentation is insufficient to justify further
           proceedings. See, e.g., [People v.] Pitsonbarger, 205 Ill. 2d [444,] 463 [(2002)]
           (‘a petitioner must establish cause and prejudice as to each individual claim
           asserted in a successive petition’); Tidwell, 236 Ill. 2d at 161 (a defendant
           seeking leave to institute a successive postconviction ‘must submit enough in
           the way of documentation to allow a circuit court to make that determination’);
           Edwards, 2012 IL 111711, ¶ 24 (‘leave of court should be denied only where it
           is clear, from a review of the successive petition and the documentation
           provided by the petitioner’ that the petitioner’s claims fail as a matter of law).”
           Smith, 2014 IL 115946, ¶ 35.

¶ 22       We reached this conclusion after noting:

               “Section 122-1(f) contains no express provision for fully resolving the
           cause-and-prejudice determination prior to proceeding with the three-stage
           postconviction process outlined in the Act. Section 122-1(f) does not answer
           whether a successive postconviction petitioner must demonstrate cause and
           prejudice by actively pleading it, or by actually proving it. If the petitioner is
           required to prove cause and prejudice, section 122-1(f) does not provide a
           method for presentation of evidence.



                                                 -7-
              From a practical standpoint, if a petitioner is required to establish cause and
          prejudice conclusively prior to being granted leave to file a successive petition,
          it may render the entire three-stage postconviction process superfluous. Section
          122-1(f) does not provide that a petitioner is entitled to relief upon satisfaction
          of the cause-and-prejudice test. It only gives a petitioner an avenue for filing a
          successive postconviction petition. The legislature clearly intended for further
          proceedings on successive postconviction petitions.” Id. ¶¶ 28-29.

¶ 23       In addition, we recognized that “[s]ection 122-1(f) does not provide for an
       evidentiary hearing on the cause-and-prejudice issues and, therefore, it is clear that
       the legislature intended that the cause-and-prejudice determination be made on the
       pleadings prior to the first stage of postconviction proceedings.” Id. at ¶ 33.

¶ 24       Based on our findings in Smith that the cause and prejudice determination is 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, we now
       hold that the State should not be permitted to participate at the cause and prejudice
       stage of successive postconviction proceedings. As in Gaultney, although the Act
       does not expressly prohibit the State’s input, we find that the Act contemplates an
       independent determination by the circuit court. The motion for leave to file is
       directed to the court, and it is the court that must decide the legal question of
       whether a defendant has satisfied the section 122-1(f) requirement of showing
       cause and prejudice. This is a preliminary screening to determine whether
       defendant’s pro se motion for leave to file a successive postconviction petition
       adequately alleges facts demonstrating cause and prejudice. Id. ¶ 34. In other
       words, the court must determine whether defendant has made a prima facie
       showing of cause and prejudice. If the defendant has done so, the court will grant
       leave for the petition to be filed.

¶ 25       Because the court is capable of making an independent determination on the
       legal question of whether adequate facts have been alleged for a prima facie
       showing of cause and prejudice and because the statute makes no provision for an
       evidentiary hearing and the petition, itself, is not actually filed until leave has been
       granted by the court, we see no reason for the State to be involved at the cause and
       prejudice stage. As we said in Smith, satisfying the section 122-1(f) cause and




                                                -8-
       prejudice requirement does not entitle the defendant to relief but rather “only gives
       a petitioner an avenue for filing a successive postconviction petition.” Id. ¶ 29.
       Further proceedings on successive postconviction petitions were clearly
       contemplated by the legislature. Id.

¶ 26       If the court determines that cause and prejudice have been adequately alleged
       and allows the petition to be filed, it advances to the three-stage process for
       evaluating postconviction petitions. During this process, the State would have an
       opportunity to seek dismissal of the petition on any grounds, including the
       defendant’s failure to prove cause and prejudice for not having raised the claims in
       the initial postconviction petition.

¶ 27       We are further persuaded that the section 122-1(f) requirement of
       demonstrating cause and prejudice should be an independent determination by the
       court because successive postconviction petitions are typically filed pro se and the
       Act makes no provision for a defendant to be entitled to counsel until after a
       postconviction petition is docketed. 725 ILCS 5/122-4 (West 2014). In our view,
       permitting the State to argue against a finding of cause and prejudice at this
       preliminary stage, when the defendant is not represented by counsel, is inequitable,
       fundamentally unfair, and raises due process concerns.

¶ 28        The State does not directly address the fairness concern but, rather, maintains
       that because the Act does not affirmatively prohibit the State from opposing a
       motion for leave to file a successive postconviction petition, the statute should be
       interpreted as allowing the State’s input. The State contends that permitting it to
       provide input on the motion is commensurate with the “default rule” that parties are
       generally permitted to respond to motions for leave to file. The State cites cases in
       which a party, without any specific statutory authority, was permitted to file an
       objection to an opposing party’s motion for leave to file. See Italia Foods, Inc. v.
       Sun Tours, Inc., 2011 IL 110350, ¶ 4 (motion for leave to file an amended
       complaint); People v. Dittmar, 2011 IL App (2d) 091112, ¶ 35 (motion for leave to
       file a late pleading); People v. Hernandez, 345 Ill. App. 3d 163, 166 (2d Dist. 2004)
       (motion for leave to file a supplemental brief).

¶ 29      What is immediately apparent, however, is that none of these cases have
       anything to do with motions for leave to file a successive petition within the context
       of postconviction proceedings. Although postconviction proceedings are



                                               -9-
       considered civil in nature, they are sui generis and for that reason general civil
       practice rules and procedures apply only to the extent they do not conflict with the
       Post-Conviction Hearing Act. People v. Coleman, 206 Ill. 2d 261, 288 (2002);
       People v. Chester, 2014 IL App (4th) 120564. For this reason, we find the cases
       cited by the State offer no guidance on interpreting the statutory provision before
       us.

¶ 30       The State also argues that we should find that the statute permits the State to
       provide input to the circuit court at the cause and prejudice stage because in People
       v. Smith, 383 Ill. App. 3d 1078, 1089-90 (2008), People v. Collier, 387 Ill. App. 3d
       630, 639 (2008), People v. Welch, 392 Ill. App. 3d 948, 955 (2009), and People v.
       Crenshaw, 2015 IL App (4th) 131035, ¶¶ 31, 35, our appellate court has held that
       the circuit court did not err when it allowed the State’s participation before ruling
       on the defendant’s motion for leave to file a successive postconviction petition.

¶ 31       We have reviewed each of the cases cited by the State and find them to be
       inapposite. Notably, in both Smith and Collier, due to their procedural posture, the
       defendants were represented by counsel when their motions for leave to file a
       successive postconviction petition were submitted to the court. In addition, the
       Smith and Collier courts found no error resulting from the State’s participation
       because, as the Collier court explained:

          “Here, as in Smith, the record fails to demonstrate that the State discussed with
          or influenced the court in its decision to deny defendant leave to file his
          petition. Neither the merits of the petition nor the procedural hurdles were
          discussed. The colloquy between the court and the assistant State’s Attorney
          was directed only to the procedural posture of the case and the proper method of
          proceeding on remand.” 387 Ill. App. 3d at 640.

¶ 32      Thus, Smith and Collier actually appear to support the notion that the State’s
       input on the matter of cause and prejudice is not appropriate.

¶ 33       As noted above, in the case at bar, defendant filed his motion for leave to file a
       successive postconviction petition pro se, and he was not represented by counsel
       before the motion was dismissed. In addition, when the State filed its written
       objection to defendant’s motion and argued against the motion at an ex parte
       hearing, the State’s arguments were not directed to some collateral matter but to the




                                               - 10 -
       ultimate issue before the court, i.e., whether defendant had shown cause and
       prejudice. We cannot say that the court was not influenced by the State’s arguments
       when it denied defendant’s motion. Accordingly, Smith and Collier are inapposite.

¶ 34       The State’s reliance on Welch and Crenshaw is also misplaced. In Welch, the
       defendant filed pro se a second postconviction petition along with a petition for
       relief pursuant to section 2-1401 of the Code of Civil Procedure. See 735 ILCS
       5/2-1401 (West 2014). Defendant was appointed counsel, who amended the
       postconviction petition to set forth additional claims and abandoned the
       defendant’s pro se section 2-1401 petition. The amended postconviction petition
       was later dismissed, and that decision was upheld on appeal. Thereafter, the
       defendant filed another section 2-1401 petition pro se. The State moved to dismiss
       the petition as untimely, but the trial court reserved ruling on the State’s motion and
       appointed counsel to represent the defendant. Appointed counsel then chose not to
       pursue defendant’s pro se section 2-1401 petition and, instead, filed a motion for
       leave to file a successive postconviction petition, raising an issue different from the
       one the defendant raised in his pro se section 2-1401 petition. A hearing was held,
       at which the circuit court heard argument from both parties. The court denied the
       motion for leave to file a successive postconviction petition, finding the issue raised
       in the third successive petition had already been addressed and fully litigated and
       therefore defendant could not satisfy the cause and prejudice test. Welch, 392 Ill.
       App. 3d at 951.

¶ 35       On appeal, defendant’s appointed counsel filed a Finley motion to withdraw,
       but the court denied the motion and ordered the parties to brief two issues. One of
       the issues to be briefed was whether it had been improper for the trial court to allow
       the State to argue against the motion for leave to file a successive postconviction
       petition. After briefing, the appellate court affirmed the trial court’s denial of the
       motion for leave to file a successive postconviction petition. The court concluded
       that no error had occurred as a result of the State’s participation, noting that “both
       parties participated in arguments regarding [defendant’s] motion for leave to file
       his successive petition.” Id. at 955. The court then affirmed the denial of the
       defendant’s motion for leave to file a successive postconviction petition, stating:
       “The parties have not offered, and we have not found, any authority prohibiting
       input from the State at this stage of postconviction proceedings.” Id.




                                               - 11 -
¶ 36       After Welch was decided, the issue was addressed in Crenshaw, 2015 IL App
       (4th) 131035. The Crenshaw court cited Welch and, like Welch, found no error in
       allowing the State to provide input at the cause and prejudice stage of a successive
       postconviction proceeding, holding:

          “The State’s input can offer assistance to the trial court in making its decision
          whether to grant leave—assistance that may prove helpful given the issues
          raised and the passage of time, the latter evinced in this case by the nearly three
          years that elapsed between the filing of the amended postconviction petition
          and the petition for leave to file a successive petition.” Id. ¶ 33.

¶ 37       The defendant in Crenshaw, like the defendant in the case at bar, pointed out
       that the House of Representatives of the ninety-eighth General Assembly had
       passed an amended version of section 122-2.1(f), which required a circuit court to
       decide whether to grant leave to file a successive postconviction petition “ ‘without
       pleadings from the State.’ ” (Emphasis omitted.) Id. ¶ 34 (quoting 98th Ill. Gen.
       Assem., House Bill 2961, 2013 Sess.) The defendant argued that, although this
       amended version of section 122-2.2(f) stalled in the House, the court should find
       that allowing the State to participate at the motion stage was contrary to the
       legislature’s “proposed intent.” The Crenshaw court rejected this argument,
       however, stating that “proposed intent” is not the law and “[u]ntil such time as our
       supreme court or the legislature says otherwise, we find nothing prevents the State
       from providing its input on a defendant’s motion for leave to file a successive
       postconviction petition.” 2015 IL App (4th) 131035, ¶ 35.

¶ 38       We find neither of these cases to be helpful in resolving the issue before us.
       Welch, like Smith and Collier, is factually distinguishable because of its procedural
       posture and because the defendant was represented by counsel. More importantly,
       when interpreting section 122-1(f), we are not persuaded by the Welch and
       Crenshaw courts’ reliance on the absence of language in the statute prohibiting the
       State’s participation at the cause and prejudice stage of successive postconviction
       proceedings.

¶ 39       As previously noted, the Act contemplates the filing of only one petition
       without leave of court (725 ILCS 5/122-1(f) (West 2014)), and any claim not
       presented in an original or amended petition is waived (725 ILCS 5/122-3 (West
       2014)). For this reason, successive postconviction petitions are highly disfavored.



                                              - 12 -
       Edwards, 2012 IL 111711, ¶ 29. We acknowledged in Smith that “[s]ection
       122-1(f) does not provide that a petitioner is entitled to relief upon satisfaction of
       the cause-and-prejudice test. It only gives a petitioner an avenue for filing a
       successive postconviction petition.” 2014 IL 115946, ¶ 29. In this respect, although
       the standards are different, the cause and prejudice stage is similar to the circuit
       court’s screening of a defendant’s initial petition at the first stage, when the court
       must independently determine whether the defendant has met his burden of
       demonstrating the gist of a constitutional violation.

¶ 40       Moreover, if we were to agree that the circuit court may hold a hearing at which
       the State may provide input on whether cause and prejudice has been demonstrated,
       would not such a hearing be an evidentiary hearing, which is not authorized by the
       Act? Also, if we were to permit such a hearing despite the lack of statutory
       authority, would not due process require that the defendant be represented by
       counsel or, at the very least, be present at such a hearing? Consequently, by holding
       that the State may participate at the cause and prejudice stage, we would
       necessarily introduce additional costs—in terms of time and expenditure of judicial
       resources, as well as the cost of representation and the transporting of defendant
       from prison—all of which would defeat the apparent purpose of the Act, which is to
       expeditiously screen petitions which are highly disfavored. For this reason, too, we
       must reject such an interpretation of section 122-1(f) of the Act.

¶ 41       As a final matter, having found that the circuit court erred by permitting the
       State’s input, we must consider the relief to which defendant is entitled. Defendant
       requests that we reverse the circuit court’s denial of his motion and remand to the
       circuit court for consideration of his motion by a different judge. The State,
       however, contends that defendant’s motion is deficient on its face and, therefore,
       there is no need to remand the matter.

¶ 42       In the interest of judicial economy, we have reviewed defendant’s motion for
       leave to file his successive postconviction petition ourselves and find that there is
       no need for remand. Defendant makes no attempt in his motion to satisfy the cause
       and prejudice requirement of section 122-1(f). No facts are alleged for even a
       cursory showing of cause and prejudice.

¶ 43       As indicated above, defendant was found guilty on two counts: disarming a
       police officer and committing residential burglary for having entered, without



                                               - 13 -
       authority, the residence located at 1453 Garland Court in Joliet on July 23, 2004. In
       his motion for leave to file a successive postconviction petition, defendant first
       alleges actual innocence. He begins by stating, “Petitioner argue [sic] that this issue
       was mention [sic] in his first post-conviction petition, during a pre-postconviction
       motion for counsel’s [sic] other then [sic] an [sic] public defender.” Defendant then
       goes on to explain that he obtained “newly discovered evidence” in the form of a
       signed and notarized affidavit by Ruby Hughes, dated December 20, 2010, in
       which Ruby (now deceased) indicates that she saw defendant, in the early morning
       hours of July 22, 2004, knock on the front door of the residence at 1453 Garland
       Court before entering.

¶ 44       There are several serious defects with this claim of actual innocence. First, it
       would appear that, by defendant’s own admission, this issue was previously raised
       and, therefore, res judicata applies. Second, even if we were to consider the actual
       innocence claim on its merits, it only attacks defendant’s conviction for residential
       burglary and does not even mention defendant’s conviction for disarming a police
       officer. Finally, assuming that the discrepancy in the dates is simply a clerical error,
       the affidavit—which is not attached to the motion because the only remaining copy
       of the affidavit “was placed in the Menard Correctional Center Mailbox” and
       apparently is no longer available—merely suggests that defendant may have sought
       permission to enter the residence by knocking. The affidavit does not assert that
       anyone answered the knock and permitted defendant to enter, nor does it negate the
       fact that, at trial, Tommy Taylor, who was living at 1453 Garland Court and
       encountered defendant in his residence, testified that he did not give defendant
       permission to enter.

¶ 45       Defendant raises additional claims in which he alleges that “newly discovered
       evidence” exists, which provides grounds for granting him postconviction relief in
       the form of a new trial. It is true that cause for not having raised a claim earlier may
       be supported by the fact that exculpating evidence only recently came to light and
       could not have been discovered earlier. In this case, however, defendant’s motion
       fails to present any facts that would support a finding that the evidence is “newly
       discovered.” For example, defendant claims that certain medical evidence
       regarding an injury to his left wrist, which would show that he could not have
       committed the offense of disarming a police officer, is “newly discovered” because




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       the trial court, having determined that the evidence was irrelevant, refused to allow
       him to present it at trial.

¶ 46        Defendant also raises a speedy trial violation claim—based on the trial court’s
       grant of defense counsel’s request for a continuance so that defendant’s fitness for
       trial could be determined—and he raises a due process claim—based on his
       assertion that the doctor who evaluated his fitness for trial did not consider whether
       he was fit to represent himself at trial. It is clear, after examining defendant’s
       motion for leave to file a successive postconviction petition, that he has failed to
       demonstrate cause and prejudice and that the claims he alleges fail as a matter of
       law and do not justify further proceedings. Accordingly, we affirm the denial of
       defendant’s motion.


¶ 47                                      CONCLUSION

¶ 48       In sum, we find that section 122-1(f) of the Post-Conviction Hearing Act
       permits a defendant to file a successive postconviction petition only if he or she is
       able to demonstrate cause and prejudice; that is, the defendant must allege facts to
       explain why the claims being asserted in the successive petition could not have
       been raised in the initial postconviction petition. Whether this prima facie showing
       of cause and prejudice has been made is a question of law to be independently
       determined by the circuit court.

¶ 49       In the case at bar, the circuit court permitted the State to argue against a finding
       of cause and prejudice. Based on our holding in this case, this was error. However,
       because the question of whether defendant’s motion demonstrates cause and
       prejudice is a question of law and in the interest of judicial economy, we have
       chosen to review defendant’s motion in lieu of remanding the matter to the circuit
       court. Upon examination, we find that, as a matter of law, defendant has failed to
       demonstrate cause and prejudice for not raising his claims, including his claim of
       actual innocence. Accordingly, we affirm the denial of defendant’s motion for
       leave to file a second postconviction petition.


¶ 50      Affirmed.




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