Illinois Official Reports

Appellate Court

People v. Canizalez-Cardena, 2020 IL App (4th) 180212

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

JOSE CANIZALEZ-CARDENA, Defendant-Appellant.

District & No. Fourth District 

No. 4-18-0212

Filed May 29, 2020

Decision Under 

Review

Appeal from the Circuit Court of Champaign County, No. 10-CF1664; the Hon. Heidi N. Ladd, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Michael Gomez, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J. 

Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE TURNER delivered the judgment of the court, with opinion.

Justices Cavanagh and Holder White concurred in the judgment and 

opinion.
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OPINION

¶ 1 On March 1, 2018, during the second stage of proceedings under the Post-Conviction 

Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2018)), the trial court vacated an order 

it entered in October 2016 that granted defendant, Jose Canizalez-Cardena, leave to file a 

successive postconviction petition. Defendant appeals on several grounds. Defendant first 

argues the trial court’s decision during the second stage of proceedings to vacate its order 

granting defendant leave violated the Act and denied him due process because the decision 

was made without notice, a meaningful opportunity to be heard, or any proceedings in open 

court. Defendant also argues his postconviction counsel failed to provide reasonable assistance 

because his attorney failed to properly amend defendant’s petition to allege cause and 

abandoned defendant’s actual innocence claim. Finally, defendant argues this court should 

remand his case to the trial court for new second-stage postconviction proceedings before a 

different judge. We reverse the trial court’s March 2018 order, remand this case for new 

second-stage proceedings under the Act, and order the trial court to appoint a new attorney to 

represent defendant.

¶ 2 I. BACKGROUND

¶ 3 In September 2010, the State charged defendant with unlawful possession with intent to 

deliver 900 grams or more of a substance containing methamphetamine, a Class X felony. 720 

ILCS 646/55(a)(1), (a)(2)(F) (West 2010).

¶ 4 At a December 2010 suppression hearing on defendant’s challenge to the constitutionality 

of the search of the suspect vehicle, Trooper Chris Owen of the Illinois State Police testified 

he stopped a vehicle for speeding. The vehicle met the description of a car he had been told 

might be transporting methamphetamine. Leonel Galaviz-Galaviz was driving the vehicle, and 

defendant was the only passenger. Defendant was overly nervous. His carotid artery pulsed, 

he stared straight ahead, and his hands were trembling. Owens testified he could smell air 

fresheners and saw several in the car, which from his experience indicated the possibility drugs 

were in the vehicle. In Spanish, Owens asked defendant to get out of the car and stand in the 

ditch. Defendant had a phone in his pocket that rang constantly. 

¶ 5 According to Trooper Owens, when he let his police canine out of the squad car to smell 

the suspect vehicle, defendant turned his body and appeared to be praying. The driver later 

provided consent to search the vehicle, and the police found 2236.1 grams of 

methamphetamine.

¶ 6 Both defendant and Galaviz were represented by the same trial counsel and were tried at 

the same time in a stipulated bench trial. At the stipulated bench trial, defendants stipulated 

Trooper Owens would testify consistent with his earlier testimony, would be qualified as an 

expert in narcotics trafficking and interdiction, and would testify the amount of 

methamphetamine found in the vehicle indicated an intent to deliver and the multiple cell 

phones in the car, including two in defendant’s possession, indicated drug sales. 

¶ 7 Defendants also stipulated to postarrest statements made by Galaviz, who told the police 

he could not find work in Los Angeles and was hired by a friend, Jose Valle, to drive the 

suspect vehicle from Los Angeles to Chicago and deliver the vehicle to an individual Galaviz 

did not know for $4000. Galaviz believed the vehicle belonged to Valle’s brother, Francisco 
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Valle. Galaviz never communicated with the person to whom he was to deliver the car, whom 

he only knew as “the Cuban.” When Galaviz and defendant arrived where they were directed 

to go, they waited three hours. Jose Valle then called Galaviz to tell him “the Cuban” was 

there. Galaviz and defendant then followed “the Cuban” for about an hour and a half. 

¶ 8 Trooper Owen believed Galaviz’s story to be implausible, as Galaviz was off-route from 

where he said he was going and could not specify from where in Illinois he had been. Galaviz 

said he and defendant had known each other for about six months before their arrest, having 

met working construction. Galaviz and defendant shared the driving duties on the trip. Galaviz 

told the police he did not know defendant, Jose Valle, or Francisco Valle to be involved in 

drug trafficking. Galaviz also claimed he did not know about the methamphetamine in the 

vehicle. 

¶ 9 The trial court found both Galaviz and defendant guilty of unlawful possession with intent 

to deliver methamphetamine. Based on the evidence presented, the court found both Galaviz 

and defendant were aware of the presence of the methamphetamine in the vehicle. In July 2011, 

the trial court sentenced defendant to 25 years in prison. 

¶ 10 In his direct appeal, defendant argued the evidence presented at the stipulated bench trial 

was insufficient to prove his guilt beyond a reasonable doubt, the trial court erred in denying 

his motion to suppress evidence, and the court considered improper factors when it sentenced 

him. People v. Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 1, 979 N.E.2d 1014. This 

court found a rational trier of fact could have found the State proved defendant’s guilt beyond 

a reasonable doubt, the trial court did not err in denying defendant’s motion to suppress, and 

the court did not err in sentencing defendant. Canizalez-Cardena, 2012 IL App (4th) 110720, 

¶¶ 15, 17, 19, 24. 

¶ 11 In April 2013, defendant filed a pro se petition for postconviction relief pursuant to the 

Act. Defendant claimed his trial counsel had a conflict of interest because he represented both 

defendant and Galaviz in the trial court even though defendant’s and Galaviz’s involvement, 

knowledge, and culpability were different. Defendant stated Galaviz told police he asked 

defendant to go with him on a road trip to look for work so Galaviz did not have to drive alone. 

Galaviz also told police he received payment to drive the car to Illinois but defendant did not 

know this. According to defendant, his trial counsel had a duty to make an offer on his behalf 

to have Galaviz testify about this exonerating information. Defendant also claimed his trial 

counsel failed to argue at sentencing that defendant was less culpable then Galaviz and that a 

disparity existed regarding their knowledge of the crime. 

¶ 12 In July 2013, the trial court found defendant had not shown an actual conflict of interest 

existed in defense counsel’s joint representation that adversely affected defense counsel’s 

representation of defendant. The court noted defendant’s claim of an actual conflict of interest 

was not supported by any specific defect in his trial counsel’s representation. The court also 

found defendant failed to demonstrate a basis to find Galaviz would have waived his right 

against self-incrimination and accepted sole responsibility for the offense had Galaviz been 

represented by a different attorney. The court stated both defendant and Galaviz denied 

knowledge of the drugs and neither accused the other of committing the offense. The trial court 

dismissed the petition as frivolous and patently without merit. 

¶ 13 Defendant appealed the summary dismissal of his postconviction petition, arguing his 

petition stated the gist of a constitutional claim his trial counsel was ineffective because 

counsel’s representation of both Galaviz and defendant created an actual conflict of interest 
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adversely affecting his performance. According to defendant, counsel did not challenge the 

evidence as applied to defendant, capitalize on Galaviz’s statements that defendant claimed 

were exculpatory to him, and argue at sentencing defendant was less culpable and had less 

knowledge of the methamphetamine than Galaviz. People v. Canizalez-Cardena, 2015 IL App 

(4th) 130680-U, ¶ 23. This court did not address defendant’s claim his trial counsel was 

ineffective based on his joint representation because the issue could have been, but was not, 

raised on direct appeal. Defendant did not include a claim his appellate counsel was ineffective 

for failing to raise the argument on direct appeal in his postconviction petition. This court found 

defendant could not raise the issue of his appellate counsel’s ineffectiveness for the first time 

on appeal. Canizalez-Cardena, 2015 IL App (4th) 130680-U, ¶ 29. This court did note 

defendant could raise the issue in a successive postconviction petition if he could satisfy the 

cause and prejudice test. Canizalez-Cardena, 2015 IL App (4th) 130680-U, ¶ 30. 

¶ 14 On October 17, 2016, defendant filed a pro se successive petition for postconviction relief. 

Within his petition, citing People v. Tidwell, 236 Ill. 2d 150, 923 N.E.2d 728 (2010), defendant 

asked the trial court for leave to file his successive petition. Defendant’s successive petition 

claimed his appellate counsel in his direct appeal was ineffective and his ineffectiveness 

resulted in the forfeiture of nonfrivolous claims. 

¶ 15 According to defendant, his appellate counsel failed to make an actual innocence argument 

even though Galaviz had made statements exonerating defendant from knowing about the 

transportation of the illegal drugs. His appellate counsel also failed to argue his trial counsel 

was ineffective and operated under a conflict of interest by representing both Galaviz and 

defendant. Defendant also took issue with his appellate counsel’s failure to challenge the 

stipulations trial counsel made. According to defendant, without these stipulations, the State 

did not have sufficient evidence to prove him guilty beyond a reasonable doubt. Further, 

defendant argued his trial counsel’s actions were not supported by any reasonable strategy. 

Finally, defendant argued his codefendant’s statements established his actual innocence. 

¶ 16 On October 25, 2016, the trial court allowed defendant leave to file his successive 

postconviction petition and appointed the public defender’s office to represent defendant. 

¶ 17 On January 27, 2017, defendant’s appointed counsel filed an amended successive motion 

for postconviction relief. Appointed counsel noted he reviewed defendant’s pro se successive 

petition and was adopting and incorporating defendant’s pro se petition because it adequately 

outlined defendant’s constitutional claims. Appointed counsel argued defendant was denied 

the effective assistance of his trial counsel because of a lack of effective communication 

between defendant, who only spoke Spanish, and his trial counsel. While his trial counsel had 

an interpreter, the interpreter did not speak fluent Spanish, and defendant did not understand 

the translator. The petition alleged defendant was illiterate in both Spanish and English. 

Because defendant could not appropriately communicate with his trial counsel, he did not 

understand the ramifications of having the same attorney as his codefendant, waiving his right 

to a jury trial, and agreeing to the stipulations at his bench trial. Defendant also did not 

understand he could have his own trial instead of being tried with Galaviz. 

¶ 18 On March 9, 2017, the State filed a motion to dismiss the amended postconviction petition. 

On May 24, 2017, without reaching the arguments made by the State other than its argument 

defendant’s appointed counsel could not incorporate defendant’s pro se petition in the 

amended petition as an exhibit, the trial court allowed the State’s motion but gave defendant 
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leave to file a second amended successive postconviction petition without incorporating 

defendant’s pro se petition. 

¶ 19 On June 29, 2017, a different assistant public defender entered his appearance for defendant 

and filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013) and a 

second amended successive postconviction petition. The second amended successive petition 

for postconviction relief alleged defendant’s appellate counsel in his direct appeal was 

ineffective because counsel failed to raise prejudicial errors made by defendant’s trial counsel.

According to the petition, trial counsel was ineffective because he (1) only had three 

communications with defendant, all in the presence of Galaviz, and with an inadequate 

translator; (2) pursued an unreasonable trial strategy that the amount of drugs in the vehicle 

was sufficient to impute an intent to deliver even though defendant told his attorney he was 

innocent; and (3) had an actual conflict of interest in representing defendant and his 

codefendant. Defendant’s appointed counsel did not include defendant’s actual innocence 

claim in the second amended successive postconviction petition, noting counsel did not believe 

defendant’s claim could meet the pleading requirements. 

¶ 20 On August 14, 2017, the State filed a motion to dismiss the second amended successive 

petition for postconviction relief. 

¶ 21 On March 1, 2018, the trial court found it erred in granting defendant leave to file his 

successive postconviction petition without defendant filing a motion separate from the 

successive petition itself requesting leave. The court also noted it had not made a finding 

defendant had complied with the “cause and prejudice” test. Further, while defendant’s petition 

had mentioned “actual innocence,” it did not allege any facts supporting a claim of actual 

innocence. The court also stated defendant’s second amended successive postconviction 

petition conceded defendant did not have a legal basis for an actual innocence claim. According 

to the court, because leave should not have been granted, the court could not consider the merits 

of defendant’s successive petition. The court then dismissed the successive postconviction 

petition filed on January 27, 2017, and vacated the appointment of the Champaign County 

Public Defender’s Office. 

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS 

¶ 24 We first address defendant’s argument the trial court erred on March 1, 2018, during 

second-stage postconviction proceedings, when it vacated its October 25, 2016, order granting 

defendant leave to file a successive postconviction petition. According to defendant, the court’s 

ruling was improper and unauthorized under the Act. 

¶ 25 Citing People v. Mink, 141 Ill. 2d 163, 565 N.E.2d 975 (1990), and People v. Johnson, 

2017 IL 120310, 77 N.E.3d 615, the State argues a trial court has an inherent power to 

reconsider and correct its own rulings while the case remains pending before it. In this case, 

because defendant’s successive postconviction petition was still pending in the trial court, the 

State argues the trial court had the ability to change its earlier rulings. While generally true, 

based on the facts in this case, the trial court erred in doing so here.

¶ 26 In Mink, our supreme court did state a trial court in a criminal case has the inherent 

authority to reconsider and correct its own rulings, both interlocutory and final, as long as the 

court retains jurisdiction, regardless of whether a statute or rule grants the court such authority. 
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Mink, 141 Ill. 2d at 171. However, Mink is distinguishable from the situation here because 

Mink did not involve proceedings under the Act. The supreme court’s focus in Mink was on 

the trial court’s decision to grant the State’s motion to reconsider the trial court’s earlier order 

granting the defendant’s posttrial motion. 

¶ 27 Unlike Mink, Johnson did involve the Act but not a successive petition. In Johnson, the 

trial court initially summarily dismissed the defendant’s postconviction petition because it was 

untimely and did not allege facts showing the delay was not due to the defendant’s culpable 

negligence. Johnson, 2017 IL 120310, ¶ 4. The defendant appealed, and the appellate court 

reversed the dismissal and remanded the case to the trial court for second-stage proceedings. 

Johnson, 2017 IL 120310, ¶ 4. On remand, the defendant’s appointed counsel filed a motion 

to allow the defendant’s petition to be filed late. Johnson, 2017 IL 120310, ¶ 5. Judge Vecchio 

granted defendant’s motion. Thereafter, the case was assigned to Judge Wilt in January 2012. 

Johnson, 2017 IL 120310, ¶ 7. 

¶ 28 The following October, the State filed a motion to dismiss the defendant’s petition. The 

State acknowledged the timeliness issue had already been decided by Judge Vecchio’s prior 

ruling but included the issue in its motion to dismiss to avoid forfeiture. The State noted it 

disagreed with the due date for the petition as argued by the defendant and also argued the 

defendant had failed to make a substantial showing of a constitutional violation. Johnson, 2017 

IL 120310, ¶ 8. Judge Wilt granted the State’s motion and dismissed the defendant’s petition 

in September 2013, finding the petition was untimely and the claims meritless. Johnson, 2017 

IL 120310, ¶ 9. On appeal, the trial court’s dismissal order was affirmed because the petition 

was untimely and the defendant was culpably negligent in not timely filing the petition. The 

court also found Judge Wilt had the authority to reconsider Judge Vecchio’s prior order 

regarding timeliness. Johnson, 2017 IL 120310, ¶ 10. The defendant appealed the decision to 

our supreme court, which stated:

“As defendant acknowledges and as the appellate court found, a court in a criminal 

case has the inherent power to reconsider and correct its rulings, and this power extends 

to interlocutory rulings. [Mink, 141 Ill. 2d at 171.] Judge Vecchio’s ruling regarding 

the timeliness of defendant’s petition was an interlocutory order that Judge Wilt had 

the power to review and reconsider. See Catlett v. Novak, 116 Ill. 2d 63, 68[, 506 

N.E.2d 586, 589] (1987) (an interlocutory order can be reviewed, modified, or vacated 

at any time before final judgment). Accordingly, we find no error in Judge Wilt’s 

reconsideration of Judge Vecchio’s prior order.” Johnson, 2017 IL 120310, ¶ 33. 

¶ 29 However, the situation here is different than the situation in Johnson and appears to be an 

issue of first impression. Based on our review of other cases decided by our supreme court, we 

hold a trial court’s order granting a defendant leave to file a successive postconviction petition 

is not an interlocutory order that may be reversed once the State has filed a motion to dismiss 

the successive petition. 

¶ 30 Our supreme court has made clear postconviction proceedings “are sui generis, and for that 

reason general civil practice rules and procedures apply only to the extent they do not conflict 

with the [Act].” People v. Bailey, 2017 IL 121450, ¶ 29, 102 N.E.3d 114. In Johnson, both the 

initial ruling and the ruling reversing the initial ruling occurred during the second stage of 

postconviction proceedings. In the case sub judice, the trial court granted defendant leave to 

file his successive postconviction petition, the petition was then filed, and the case proceeded 

to the second stage of proceedings under the Act. During these second stage proceedings, the 
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State filed two motions to dismiss before the court vacated its decision to give defendant leave 

to file his successive petition. 

¶ 31 Our supreme court has determined the State should not be allowed to participate in the trial 

court’s determination whether to grant or deny a defendant’s request for leave to file a 

successive postconviction petition. Bailey, 2017 IL 121450, ¶ 24. Instead, whether to grant 

leave is to be determined as a matter of law by the trial court based on the pleadings and 

supporting documentation provided to the court by the defendant. Bailey, 2017 IL 121450, 

¶ 24. In making this determination, a court must remember a petitioner is not required to 

conclusively establish “cause and prejudice” before the trial court grants the petitioner leave 

to file his successive petition. Otherwise, the three-stage postconviction process would be 

“superfluous.” Bailey, 2017 IL 121450, ¶ 22 (citing People v. Smith, 2014 IL 115946, ¶¶ 28-

29, 21 N.E.3d 1172). 

¶ 32 In this case, the State did not attempt to participate in the initial determination by the trial 

court to grant defendant leave to file his successive petition. However, the trial court vacated 

its decision to grant defendant leave to file his successive postconviction petition after the State 

filed two motions to dismiss defendant’s successive petition. As a result, under these facts, we 

hold the trial court erred in vacating its decision granting defendant leave to file a successive 

petition. 

¶ 33 We also note the trial court’s reasoning for vacating its earlier decision granting defendant 

leave was flawed. The court ruled it erred in giving defendant leave to file his successive 

petition because defendant did not file a separate motion requesting leave. Our supreme court 

in Tidwell, 236 Ill. 2d at 158, held a defendant is not required to file a separate motion for leave 

to file a successive postconviction petition but only has to receive leave of court. In this case, 

defendant did receive leave from the trial court to file his petition. 

¶ 34 Because the trial court erred in vacating its prior ruling granting defendant leave to file his 

successive postconviction petition, we remand this case for second-stage proceedings under 

the Act. Because the court vacated its order appointing the public defender to represent 

defendant, we order the trial court to appoint new counsel to represent defendant. Based on 

these rulings, we need not consider defendant’s arguments he was denied due process and his 

postconviction counsel provided unreasonable assistance.

¶ 35 However, we do deny defendant’s request to replace Judge Ladd with a different trial judge 

on remand. Although Judge Ladd erred in vacating her decision granting defendant leave to 

file his successive petition, we do not find defendant will be prejudiced if Judge Ladd remains 

the trial judge in this case. See People v. Hall, 157 Ill. 2d 324, 331, 626 N.E.2d 131, 133 (1993).

¶ 36 III. CONCLUSION

¶ 37 For the reasons stated, we reverse the trial court’s order vacating its previous order granting 

defendant leave to file his successive postconviction petition, remand this case to the trial court 

for second-stage postconviction proceedings, and direct the trial court to appoint a new 

attorney to represent defendant.

¶ 38 Reversed and remanded with directions.