court only requires a demonstration of cause and prejudice that does not require a separately filed motion even if this court ultimately concludes that a separate motion is required the appellate court should not be able to avoid review of cause and prejudice where as in this case the trial court is able to make a ruling on cause and prejudice without a separate motion when inter putting a statute court's first look to the plain language in the ordinary meaning of the words used within the statute the plain language of this statute requires a demonstration of cause and prejudice it doesn't require a separate motion the key word in this statute is demonstrates the timing and manner of the demonstration are not regulated by the statute rather it is up to the trial court to determine whether cause i'm prejudiced has been sufficiently demonstrated in this case mr ted bell did but the statute required he demonstrated cause unprejudiced they arguing that a new law and tell him to relief from his claim the trial court had no trouble discerning his argument for causing prejudice on the face of his petition it was only at the appellate level the mr tiddles failure to file a separate motion seeking leave to file his successive petition was used by the court to avoid an analysis statute doesn't make that requirement rather the statute requires a demonstration the words used in the statute are he has to show cause he has to show prejudice mr treadwell made that showing made that demonstration by his argument that a new law and that was not available to him before was his cause and that he would have been entitled to relief based on that law that was the prejudice he didn't use the words that he made the demonstration he made the showing people versus the point well people versus the point found that a petition wasn't considered filed until leave of core is granted and once leave of court is granted then that petition is at the first stage the ninety day clock begins to toll lapointe does not it does not hurt this case in the least because mr ted well hasn't been granted leave to the court never granted leave to file but that's not what we arguing we're simply arguing that he's entitled to a review of the trial court's ruling on cause and prejudice and one  court noted in a footnote that while a separate motion was preferred that it was in your technical imperfection that does not hinder the trial court from performing its review under section one twenty two dash one f this is the one of petitioner in conic was perhaps more precise than mr tidd role was in his petition but the fact is that the basic requirements of the statue were met with mr ted wells petition because all the statute requires is a demonstration of c prejudiced mr treadwell made a demonstration of cause and prejudice and while it wasn't exactly precise it was should have been sufficient to it was sufficient to meet the requirements of the statute and the trial court certainly was able to make his ruling about writing what i understand in this case right right and implied requests to seek leave to file which makes sense because any time and a petitioner submits a petition to the court the trial court is inherently going to understand that the petitioner would like for that petition to be filed and not simply submitted the other the other point is that the statute doesn't require an express request it doesn't require an express request it doesn't require a separate motion it requires a demonstration and a demonstration is what we have in this case o prejudice their right to gather so had mr ted well sufficiently demonstrated cause unprejudiced in the trial court size then leave a court would have been granted it's kind of they're kind of parallel considerations in a way so case in this case the reason he didn't grant me it was because he found that there was no sufficient demonstration of causing prejudice the way you obtain leave is to make the demonstration whether that demonstration as required but there's absolutely no mention of a separate motion by contrast the proposed statute is not only directed towards petitioners explicitly which the current version is not but it also explicitly requires a motion if the need for a motion were already within the current version of the statute there would be no reason to amend it the fact that the news the proposed patch is so starkly different from the current even if this court ultimately concludes that a separate motion is required then the appellate court should not refuse to review the trial court's ruling on causing prejudice where the trial court was not hindered by the lack of such such a motion and was able to make a ruling in conic this court recognized that while it was preferred to follow separate motion that the failure to do so was a technical imperfection that did not hinder the trial court from performing its review putting up a roadblock at this stage simply doesn't make sense mr treadwell made a demonstration of cause and prejudice trial court made a ruling on that demonstration the appellate court refused to review that ruling based on a motion that no one ever cut back on frivolous filings by prisoners in the who have already filed one post conviction petition but requiring a separate motion would not decrease the burden on trial cour in fact would increase the burden on trial courts when a person is demands when a prisoner has to demonstrate cause and prejudice the prejudice portion of that argument is going to have to address some of the merits of the underlying claims the prejudice and the underlying argument are are really in twine and they can't be if the prejudice can be looked at in a vacuum without looking to the merits of whatever that underlying claim is so if a separate motion is required we have once one motion with the calls and the prejudice laid out and if the court grants we have to file then gets the actual petition then it will almost always be very set if not absolutely identical then very very similar to the petition that the trial court's already had a chance to look over and see in this case the trial court had a petition in front of him he saw a demonstration for causing prejudice he was able to discern that argument and make a ruling he denied leave to file mr ted well you know was not able was not allowed to file that petition and he was you know the purpose of the statute was was filled when the trial court denied leave to file when and when he made the ruling that it didn't meet causing prejudice so the the intent behind the rule to curb frivolous filings will will not be hindered in any way by or by a rule that does not well i don't i don't i don't think so that the statute requires leave of court leave a court is granted if the court finds there's been a demonstration of causing prejudice in this case there was you know one petition there wasn't a separate motion but the demonstration of cause and prejudice which is what is required to get leave of court was within the document that the trial court had so the trial court never granted leave to file he didn't grant leave to file and but it might be there might be in conclusion the plain language of the statute does not require successive petitioners to file a separate motion prior to submitting their successive petitions but afternoon counsel court may please the court i am assistant cook county state's attorney mary needham and i represent the people of the state of illinois the post conviction hearing act provides for one post proceeding and it provides for subsequent successive petitions in limited and certain circumstances and section one to two dash one half of the act provides those circumstances and that specifically states only one petition may be filed without leave of court and leave court make only be granted if a petitioner demonstrates cause and prejudice and that  in this case defendant filed a successive post conviction petition that did not even identify itself as a success of petition it didn't seek leave of court to proceed on a successive proceeding it didn't establish procedural hurdle which this court and many other courts have said is a daunting hurdle to overcome and now he has this court to sanction that and ignore section one two to dash one  frivolous pleadings so instead of having all these frivolous excessive petitions have a defendant a petition or set forth the reason why a successive petition should be granted that's why there is this requirement so a court can look in the first instance to see is there any merit what is the reason why this wasn't what before in fact in this case defendant couldn't meet the cause and prejudice test because his claim was i'm entitled to a reckless conduct instruction and he already raised that in th direct appeal and in his first post conviction petition he his petition basically was a citation to additional already he was sent citing a law a recent supreme court decision that he felt advanced  his hire a live in gated claim this is almost a perfect example of why the legislature has intended enacting this so that a court should be looking to see well do i need to spend time and equitable argument can be made that this particular defendant in this case the trial court had done the same thing the appellate court did and said well i never gave you leave the court to file presumably the defendant could have asked to leave court that's correct and filed and got the same determination that he now received and that is that you know i give you leave the court but there's no cause and prejudice here that's correct and that would have been review shouldn't this particular defendant here appellate process well defendant that's a very good point defendant isn't disadvantaged by the appellate court's ruling because his petition in the first instance  made a mistake in just ignoring that there was a procedural hurdle for the defendant to cross over before he started considering  o no is it your position that separate more is my position and that of that that is preferred it doesn't have to be it should be a separate document there be a leave granted if no request is ever made that's why the appellate court didn't err in this case it didn't need to consider what was never asked of it what was never presented to the court so you're saying and be it needs to be and there's several other reasons why it should not be there should not be an implied the mere filing of your success a petition should not be considered a request for leave a demonstration of cause and prejudice and your claim underlying claim all in one it's contrary to the plain language of the act it's contrary to this court's decision and the point where this court found that section one to two desh one f prohibited the filing of a successive petition without first obtaining leave of court it leads to a logical result because of the court now has to review a petition that's not considered filed to see if perhaps a defendant is advancing a claim or if one can be gleaned from it or implied  it's impractical to ask a court to search documents to see what's buried there in its time consuming it leads to other practical considerations what standard is not met greg because he just ignored the procedural hurdle didn't consider why this claim wasn't raised before what prevented it defendant from raising it before and how to find it was prejudiced by the failure to raise it before technical imperfection not prevent us examine it i don't think it's anything like kind of where the defendant specifically says stated and set forth his claim of cause and prejudice and request only if there's there's no imperfection because there was just no request be raised on appeal defendant is not disadvantaged in this position especially because this was a success of p c he had to show he had to request leave he had to show cause and prejudice in any event the statutory amendment that the legislature is contemplating does not mean that this provision does not require a defendant to seek leave of court explicitly number first i don't know any rule of statutory construction that says you should wear language just plain you should look to the fact that the legislature is considering amending a statute to include more detailed language but in any event the fact that the legislature is contemplating including that language just shows that they want to make sure that that's exactly what's happening and that implied claims requests for leaving claims a cause and prejudice are not going to be the practice in the court finally it's not more efficient for a trial court to be considering everything to be presented to it all at once a bifurcated system is what the legislature has provided so that these claims do not burden mccourt anyone practicing criminal law knows that they do it a request for leave that demonstrates cause and prejudice will not be identical to the underlying claim just because defendant is arguing in this case this hybrid well my claim was good enough to show cause and prejudice there is no reason why an underlying claim needs to show when it went to trial court is considering it and someone has overcome the procedural hurdle why would they will not be discussing what happened before why the claim wasn't raised that issue will be taken care of and the review will go right to the merits for these reasons and the reasons in our brief we respectfully request that this as have a few points to make on or about all others this is not a situation where we have an air of the trial court the statute allows the court discretion to grant leave to file when there has been an adequate demonstration of cause and prejudice leave of court isn't granted until that standard has been met in this case the trial court determined that there was no adequate demonstration of causing prejudice and secondly an implied request does not undercut the reasons we have section one twenty two dash one f and implied work any any successive petition still has to demonstrate cause and prejudice their head still has to be an adequate showing of both cause and prejudice and if that if the trial court is able to see that argument for ca was attempting to get leave to file his petition and start the first stage proceedings but he was i believe i believe that's a fair interpretation yes the court trying to claim by race today yes the court did and that was an issue that we addressed on direct appeal and disputed by it race you to cut any other wise found that mr ted wells claims were without merit but the baseline is that he did at me cause i'm prejudiced therefore he was denied leave to file his petition finally i would just like to point out that without a determination of did did he demonstrate cause and prejudice was the trial court's ruling on that issue correct there's there's just no answer to that so that's why it is important for the appellate court to review that ruling and determine whether whether the trial court's ruling was appropriate and mr general is disadvantaged if the appellate court's ruling is affirmed if he if if if it's just affirmed and just say well go back and try again and all emotion this time well that will be his his third post conviction petition his second successive petition will be required to me cause i'm prejudiced again of why it wasn't resolved at this level he'll be subject to if it's found fabulous again he'll be subject to fees and fines he could potentially be the subject of losing good time credit and it will ultimately just calls further delay and litigation that is unnecessary because we have all the information we need right here to resolve the issue but i'm going back to and i'm not saying it's the most perfectly worded statute in the world in fact it seems like the legislature is addressing them but from a purely technical standpoint the state you're asking us to decide whether it was an abuse of discretion under how you interpret this statute for this judge not to grant leave of court well purely technically if there's not leave of court granted there's nothing for the  address so doesn't that makes the state's argument a little more persuasive that you know leave of court comes before addressing the cards unprejudiced them in advance you know dance granted if leaving the court to file a success of petition is granted then because i'm prejudiced analysis would be subject to review my response is simply that leave of court comes immediately after a demonstration of causing prejudice in order to get leave  court you have to demonstrate cause i'm prejudiced so if it wasn't the reverse it wasn't i'm going to grant you leave to file this petition that never happened this petition was submitted but it was never officially filed because the trial court found that it didn't meet