2023 IL App (4th) 221092-U 

NO. 4-22-1092 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee,

v. 

BRIAN E. CHRISMAN, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Boone County 

No. 15CF218 

 

Honorable 

C. Robert Tobin III, 

Judge Presiding.

 

JUSTICE ZENOFF delivered the judgment of the court.

Presiding Justice DeArmond and Justice Knecht concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed the trial court’s dismissal of defendant’s successive 

postconviction petition where defendant did not seek leave to file it and failed to 

submit documentation sufficient for the court to make a cause-and-prejudice 

determination. 

¶ 2 Defendant, Brian E. Chrisman, appeals the November 21, 2022, order of the circuit 

court of Boone County dismissing his successive postconviction petition for his failure to seek 

leave to file the petition. Defendant argues the trial court erred in dismissing his petition without 

making cause-and-prejudice determinations as to each claim raised in the successive petition. For 

the following reasons, we affirm. 

¶ 3 I. BACKGROUND

¶ 4 In 2019, a jury convicted defendant of 10 counts of predatory criminal sexual 

assault. The trial court sentenced defendant to seven and a half years in prison on each count, to 

FILED

July 20, 2023

Carla Bender

4th District Appellate

Court, IL

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 
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be served concurrently. On direct appeal, the Second District affirmed the convictions and 

sentence. People v. Chrisman, 2021 IL App (2d) 190529-U. On August 9, 2021, defendant filed a 

pro se petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 

2020)). On August 17, 2021, the trial court summarily dismissed the postconviction petition. On 

July 28, 2022, the Second District affirmed the summary dismissal. People v. Chrisman, 2022 IL 

App (2d) 210530-U. 

¶ 5 On November 17, 2022, defendant, pro se, filed a successive postconviction 

petition alleging (1) a lack of evidence sufficient to sustain his convictions, and (2) ineffective 

assistance of counsel for failing to “stress” the lack of sufficient evidence. The petition was a 

preprinted form, and defendant’s allegations consisted of two short, conclusory paragraphs. 

Defendant did not specify whether he was directing the ineffective-assistance-of-counsel claim 

against his trial counsel, his appellate counsel, or both. Defendant did not provide any factual 

support for his allegations. The petition was not supported by affidavits. Defendant did not file a 

motion for leave to file the successive petition or otherwise seek leave to file it. Defendant also 

filed a motion for appointment of counsel. 

¶ 6 On November 21, 2022, the trial court issued a written order. The court found that 

“no motion for leave to file a successive petition was filed.” The court dismissed the successive 

petition because defendant “has not obtained leave of court to file said petition.” 

¶ 7 This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 Defendant contends the trial court erroneously believed a separate motion for leave 

to file the successive postconviction petition was necessary. Defendant argues the court was 

required to conduct a cause-and-prejudice analysis as to each of defendant’s claims as a “condition 
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precedent” to dismissing the petition. Defendant requests that we vacate the dismissal and remand 

for the court to conduct such an analysis. 

¶ 10 The Act provides a statutory remedy to defendants who claim that substantial 

violations of their constitutional rights occurred at trial. People v. Edwards, 2012 IL 111711, ¶ 21. 

Only one postconviction proceeding is contemplated by the Act. 725 ILCS 5/122-1(f) (West 2022);

Edwards, 2012 IL 111711, ¶ 22. Nevertheless, this bar is relaxed where the petitioner can establish 

cause and prejudice for the failure to raise the claim earlier. Edwards, 2012 IL 111711, ¶ 22. 

¶ 11 A petitioner who seeks to file a successive postconviction petition must first obtain 

leave of court to do so. Edwards, 2012 IL 111711, ¶ 24. “Leave of court” entails an “act of the 

court permitting certain conduct or action by a litigant.” People v. Tidwell, 236 Ill. 2d 150, 158 

(2010). “Leave of court” does not “necessarily” presuppose a request. Tidwell, 236 Ill. 2d at 158. 

However, it is incumbent upon the petitioner, “by whatever means,” to “prompt the circuit court 

to consider whether leave should be granted and obtain a ruling on [whether the defendant has 

demonstrated cause and prejudice].” (Internal quotation marks omitted.) Edwards, 2012 IL 

111711, ¶ 24. A successive postconviction petition is not considered “filed” for purposes of section 

122-1(f) of the Act, and further proceedings on the successive petition will not ensue, until leave 

of court to file such petition is granted. Tidwell, 236 Ill. 2d at 161. 

¶ 12 Where the defendant has not sought leave to file a successive postconviction 

petition, the trial court nonetheless “may rule on a successive postconviction petition *** when 

documents submitted by a petitioner supply an adequate basis to determine whether the petitioner 

has sufficiently alleged cause and prejudice.” (Emphasis added.) People v. Sanders, 2016 IL 

118123, ¶ 25. However, the court is not “required to act in the absence of a motion or request.” 
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(Emphasis in original.) Tidwell 236 Ill. 2d at 158. Our review is de novo. People v. Robinson, 2020 

IL 123849, ¶ 39. 

¶ 13 Preliminarily, we address the State’s brief. The State recasts defendant’s procedural

argument for remand thusly: “Defendant contends this court should remand the cause for 

reconsideration of defendant’s successive postconviction filing.” The State then launches into an 

examination of the trial evidence, arguing the record refutes defendant’s claims of lack of evidence

of penetration and ineffective assistance of counsel. The State then cites two cases for the general 

propositions of law that a defendant may file only one postconviction petition and must seek leave 

to file a successive petition. The State then argues, “Obviously, neither of defendant’s assertions 

in his petition show cause or prejudice. Defendant’s underlying claims have no merit, and, 

necessarily, trial counsel could not be ineffective for failing to raise meritless claims.” The State 

contends, “Leave of court should be denied where it is clear from a review of the successive 

petition (here without documentation) that petitioner’s claims fail[ ] as a matter of law.” The State 

posits, “That is what happened in the instant case. The trial court denied leave of court when it was 

clear from a review of the successive petition that petitioner’s claims failed as a matter of law.” 

¶ 14 What we set forth above constitutes the State’s entire argument. Defendant argues

that by failing to answer his contentions or attempt to distinguish his cases, the State has forfeited 

any arguments responding to his opening brief. Not only does the State’s brief fail to respond to 

defendant’s arguments, it grossly misstates the trial court’s ruling and the issues before us. The 

court did not deny leave to file the successive petition after it concluded from a review of the 

petition that defendant’s claims fail as a matter of law. The court conducted no review of the 

successive petition. The court dismissed the successive petition without any review because, in the 

court’s own words, “[defendant] has not obtained leave of court to file said petition.” 
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¶ 15 Because the State’s brief fails in any meaningful way to fulfill the purpose of an 

appellee’s brief, we will proceed according to the principles announced in First Capitol Mortgage 

Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976), as if no appellee’s brief was filed. 

Where no appellee’s brief is filed, we may (1) if justice requires, serve as an advocate for the 

appellee and search the record for the purpose of sustaining the trial court’s judgment, (2) decide 

the merits of the appeal if the record is simple and the claimed errors are such that the court can 

easily decide them without the aid of an appellee’s brief, or (3) reverse the trial court where the 

appellant’s brief demonstrates prima facie reversible error and the contentions of the brief are 

supported in the record. Talandis, 63 Ill. 2d at 133. Here, the record pertaining to the dismissal of 

defendant’s successive postconviction petition is simple and the claimed error is such that we can

easily decide it without the aid of an appellee’s brief. We note defendant’s brief more than 

adequately sets forth the relevant statutes and cases and presents a cogent argument for reversal. 

Accordingly, we admonish the State that this court is not compelled to serve as its advocate. See 

Frank v. Hawkins, 383 Ill. App. 3d 799, 808 (2008) (stating a reviewing court is not compelled to 

serve as an advocate for the appellee and is not required to search the record to sustain the trial 

court’s judgment). 

¶ 16 Defendant argues we must vacate the dismissal of his successive petition and

remand to the trial court because the court judged the petition by an improper standard of proof. 

Defendant relies on In re D.T., 212 Ill. 2d 347, 366 (2004), where our supreme court remanded the 

matter to the trial court for a new best-interests hearing because the trial court applied the wrong 

constitutional standard to the evidence. Defendant also relies on People v. Robinson, 2021 IL App 

(1st) 171371, ¶ 58, where the court noted the appropriate remedy, when the trial court has judged 
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the evidence under an improper standard of proof, is to order the trial court to conduct a new 

hearing using the correct standard of proof. 

¶ 17 Defendant further relies on People v. Thames, 2021 IL App (1st) 180071, People 

v. Ford, 2022 IL App (1st) 211538, and Tidwell for the proposition that the trial court erred in

dismissing defendant’s successive petition without first making a cause-and-prejudice 

determination.

¶ 18 In Thames, the defendant filed a motion for leave to file a second successive 

petition. Thames, 2021 IL App (1st) 180071, ¶ 61. The defendant attached two affidavits to the 

motion that factually supported his successive postconviction claim. Thames, 2021 IL App (1st) 

180071, ¶ 62. The trial court did not make a cause-and-prejudice determination but instead 

concluded that the defendant’s allegations failed to make a substantial showing of a constitutional 

violation warranting postconviction relief. Thames, 2021 IL App (1st) 180071, ¶ 72. The appellate 

court held that it had no jurisdiction to determine whether the defendant’s motion for leave to file 

the second successive postconviction petition should be allowed, as the trial court made no ruling 

on whether the defendant’s claim met the cause-and-prejudice test. Thames, 2021 IL App (1st) 

180071, ¶ 95. Thus, the appellate court remanded the matter to the trial court to conduct an analysis 

as to whether the defendant’s motion satisfied the cause-and-prejudice test. Thames, 2021 IL App 

(1st) 180071, ¶ 95. Thames is inapposite, as the defendant there filed a motion for leave to file a 

successive postconviction petition and factually supported his proposed successive petition with 

affidavits. Here, defendant made one-sentence, conclusory statements unsupported by any factual

allegations or affidavits. Although defendant asserts that he sought leave to file the successive 

petition, the record demonstrates he did not. We note defendant cites to no page in the record 

supporting his assertion that he sought leave. 
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¶ 19 Ford is also inapposite. In Ford, the defendant filed a motion for leave to file a 

successive postconviction petition. Ford, 2022 IL App (1st) 211538, ¶ 3. The trial court allowed 

the motion without conducting a cause-and-prejudice analysis and advanced the successive 

petition to the second stage. Ford, 2022 IL App (1st) 211538, ¶ 3. The court then dismissed the 

successive petition on the merits. Ford, 2022 IL App (1st) 211538, ¶ 3. The appellate court 

declined to reach the merits and held the trial court was without authority to rule on the merits 

without first making an express ruling on cause and prejudice. Ford, 2022 IL App (1st) 211538, 

¶ 5. Like Thames, Ford involved facts not present here, namely, that the defendant filed a motion 

for leave to file the successive petition.

¶ 20 Where, as here, a defendant does not file a motion for leave to file a successive 

postconviction petition or otherwise make a request for leave to file it, our supreme court instructs 

that the trial court may—but is not obliged to—rule on the successive petition when “documents 

submitted by a petitioner supply an adequate basis to determine whether the petitioner has 

sufficiently alleged cause and prejudice.” Sanders, 2016 IL 118123, ¶¶ 25, 27. Sanders followed 

Tidwell, where our supreme court held that where the defendant does not formally or otherwise 

request leave to file a successive petition, he or she must submit enough documentation to permit 

the trial court to make a cause-and-prejudice determination. Tidwell, 236 Ill. 2d at 161. The court 

reiterated that standard in Edwards. Edwards, 2012 IL 111711, ¶ 24. 

¶ 21 Here, defendant’s successive petition did not include a request for leave to file it, 

nor did defendant make such a request orally. Nor did defendant indicate any other manner by 

which he was seeking leave to file the successive petition. Thus, the trial court had discretion to 

grant leave to file a successive petition (Sanders, 2016 IL 118123, ¶ 27), but only if defendant 

submitted sufficient documentation allowing the court to make a cause-and-prejudice 
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determination. Sanders, 2016 IL 118123, ¶ 25. “Cause” refers to “any objective factor, external to 

the defense, which impeded the petitioner’s ability to raise a specific claim in the initial 

[postconviction] proceeding.” People v. Pitsonbarger, 205 Ill. 2d 444, 462 (2002). “Prejudice” 

occurs where the petitioner is denied consideration of an error that “so infected the entire trial that 

the resulting conviction or sentence violates due process.” Pitsonbarger, 205 Ill. 2d at 464. 

¶ 22 Defendant’s submission consisted of two paragraphs. Paragraph 1 stated: “There 

was no evidence found of penetration. In fact there was no evidence at all other than hear say 

[sic].” Paragraph 2 stated: “Lawyer was ineffective for not stressing the facts stated above, 

rendering [defendant] without due process of law.” Defendant made no attempt to show why these 

issues could not have been raised on direct appeal or in his initial postconviction petition, or how 

failure to consider them would deprive him of due process. Consequently, we hold that, under 

Sanders, the trial court properly exercised its discretion to dismiss the successive petition. 

¶ 23 Even if the trial court erroneously believed defendant was required to file a separate 

motion for leave to file the successive petition, we review the court’s judgment rather than its 

reasoning, and we may affirm on any basis supported by the record if the judgment is correct. 

People v. Munz, 2021 IL App (2d) 180873, ¶ 27. Accordingly, we affirm the judgment. 

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we affirm the trial court’s judgment. 

¶ 26 Affirmed.