2020 IL App (1st) 171924-U 

 THIRD DIVISION

 August 12, 2020 

 

No. 1-17-1924 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

 ) 

v. ) No. 96 CR 25900 

 ) 

MARCEL JACOBS, ) 

 ) Honorable 

 Defendant-Appellant. ) Michele M. Pitman,

 ) Judge Presiding. 

_____________________________________________________________________________ 

JUSTICE McBRIDE delivered the judgment of the court.

Presiding Justice Ellis and Justice Cobbs concurred in the judgment. 

ORDER

¶ 1 Held: The trial court properly denied defendant leave to file his successive 

postconviction petition where the issues were barred by the doctrine of res 

judicata. 

¶ 2 Defendant Marcel Jacobs appeals the trial court’s denial of his motion for leave to file a 

successive postconviction petition, arguing that he has satisfied the cause and prejudice test 

because his postconviction appellate counsel was ineffective for failing to challenge defendant’s 

conviction for aggravated criminal sexual assault on appeal from the dismissal of defendant’s 

initial postconviction petition.
No. 1-17-1924 

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¶ 3 Following a bench trial in August 1997, defendant was found guilty of one count of 

aggravated criminal sexual assault, two counts of criminal sexual assault, one count of 

aggravated criminal sexual abuse, twelve counts of manufacturing child pornography, and four 

counts of possession of child pornography. The trial court subsequently sentenced defendant to a 

term of 45 years for the aggravated criminal sexual assault with a consecutive term of 15 years 

for the manufacture of child pornography. 

¶ 4 The following is a summary of evidence presented at defendant’s 1997 bench trial taken 

from this court’s decision on defendant’s direct appeal.

 “At trial, Jeffery Coakley testified that after performing a repair in an 

apartment leased to defendant, he discovered several photographs and a video 

cassette tape; which he believed depicted unlawful acts with a child. Coakley took 

four of the photographs as well as the video cassette tape and called the police.

Hazel Crest Police Detective Gary A. Jones testified that he met Coakley 

on September 19, 1996, at which time Coakley gave him a number of 

photographs and a video cassette tape. Detective Jones then secured a search 

warrant for defendant's apartment. The warrant was executed later that evening. 

Detective Jones stated that a paper shredder, several thousand film negatives,

hundreds of video cassette tapes and some adult magazines were discovered 

during the search.

Assistant Cook County State’s Attorney Alison Perona testified that she 

interviewed defendant at the Hazel Crest police station following his arrest. 

Defendant agreed to give a written statement concerning the photographs and 
No. 1-17-1924 

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video cassette tapes found in his apartment. That statement, which defendant

reviewed, corrected and signed, read, in part, as follows:

 ‘[Defendant] states that he has been sexually attracted to 

photographs of young girls between the ages of five and eight since he 

was in high school. In particular, he enjoys looking under their dresses and 

at their panties. He finds sexual enjoyment and stimulation from these 

activities.

 When [defendant] photographs or videos five to eight 

year[] old girls, he deliberately lifts their dresses so he can film or video 

their buttocks and panties for his sexual enjoyment. He saves these films

and photos and masturbates to ejaculation as he later views these films and 

photos. 

 [Defendant] would transfer the photos or films to different formats 

***. Many of the videos [and] photographs were transferred to different 

forms within the last year.

 In 1989, [defendant] was scheduled to shoot photos of a girl whom 

he identified as [A.J.], approximately eight years old. He drove her to his 

home in Country Club Hills, Illinois. Her mother gave a change of two 

dresses for her.

 During the photo shoot, [defendant] realized that [A.J.] was very 

comfortable with him, and she let him pose her in many differen[t] ways. 

He videoed and photographed her in the session. During this session, 

[defendant] pulled her underwear tightly into the cheeks of her [buttocks] 
No. 1-17-1924 

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like a thong. He then put his hand into her genital [and] anal area. He did 

this so he could later view the film to sexually arouse himself and relive 

the experience. [Defendant] saw and identified this film in the Hazel Crest 

police station as the film he originally made in 1989. 

*** 

 [Defendant] stated he has lived in his apartment alone for the last 

two years. He admitted that he began shredding photos of young girls*** 

on September 19, 1996, because he believed the police were investigating 

him. He had shredded two large bags of photos when the police arrived to 

serve the search warrant.’ ” 

¶ 5 The State rested after this evidence. Defendant moved for a directed finding and argued 

the State had failed to prove that he placed his fingers in A.J.’s vagina or anus. The trial court 

denied the motion. Defendant rested without presenting any additional evidence. Following 

arguments, the trial court found defendant guilty of all charges. In its ruling, the court made the 

following statement:

 “I have reviewed all the evidence. I have looked at each of the 

photographs. I have watched the video tape portions that were presented to this 

Court. This Court is convinced beyond any reasonable doubt that the defendant is 

guilty of all charges that are in this Indictment.

 The evidence portraying this defendant manipulating his fingers into a – 

into the area of the anus and the vaginal area on this small child clearly shows that 

as he does this, that he pushes his fingers up into this area making more than 
No. 1-17-1924 

5 

incidental contact, rubbing his fingers, moving them in and out, in an in-and-out 

manner is clearly depicted on the tape. 

 This defendant, because she had a thin pair of panties on, it’s no different 

than someone who may commit an act of sexual penetration if he were – if a man 

was to have vaginal or anal intercourse with someone and saying that he didn’t 

actually touch them because he was wearing a prophylactic. That is ludicrous.

This defendant, the evidence of this defendant on these charges is 

overwhelming. Overwhelming, I, therefore, enter a finding of guilty as to each 

and every one of these charges.” People v. Jacobs, No. 1-97-3957, 2-4 (1999) 

(unpublished order under Supreme Court Rule 23). 

¶ 6 In his motion for a new trial, defendant argued that the indictment alleged defendant 

penetrated the vagina or anus of the victim with his finger, but the evidence in the video tape did 

not show actual penetration and “any objective observer must speculate to conclude that 

penetration even occurred.” (Emphasis in original.) The trial court denied defendant’s motion.

¶ 7 On direct appeal, defendant raised multiple claims, including an argument that the State 

failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault 

because the video tapes of defendant’s assault of A.J. did not show any intrusion into her vagina 

or anus. The court rejected defendant’s challenge to the sufficiency of the evidence. 

 “Here, two video cassette tapes were introduced into evidence. Each tape 

depicted the same encounter between defendant and A.J., a then-seven-year-old 

girl. Each tape has been carefully reviewed. Simply stated, when viewed in a light

most favorable to the State, those tapes contain evidence sufficient to justify the 
No. 1-17-1924 

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conclusion of the circuit court that defendant committed the offense of aggravated 

criminal sexual assault beyond a reasonable doubt.” Id. at 6. 

The reviewing court affirmed defendant’s conviction and sentence, but vacated a fine. Id. at 13. 

¶ 8 In August 2000, defendant filed his initial pro se postconviction petition alleging that he 

was denied the effective assistance of counsel at trial and during sentencing, and that his sixth 

amendment right to confront witnesses was also violated. In June 2001, the trial court appointed 

counsel to represent defendant, who filed an “additional issue” to his pro se postconviction 

petition alleging that defendant’s sentence was unconstitutional under Apprendi v. New Jersey, 

530 U.S. 466 (2000). The State filed a motion to dismiss the petition and additional issue. 

¶ 9 Following several continuances, in November 2006, defendant filed a pro se additional 

issue alleging that his aggravated criminal sexual assault conviction should be reversed based on 

the Illinois Supreme Court’s decision in People v. Maggette, 195 Ill. 2d 336 (2001). Maggette

clarified that contact touching by a hand to a sex organ of a victim was insufficient to meet the 

statutory definition of “sexual penetration,” where no intrusion into the sex organ was alleged. 

Id. at 346-47. According to defendant, the act of sexual penetration was not proven beyond a 

reasonable doubt at his trial because the evidence was insufficient to show there was an intrusion 

into the vagina or anus of the victim. 

¶ 10 In March 2007, postconviction counsel filed a second supplemental postconviction 

petition alleging the ineffective assistance of defendant’s trial counsel for failure to call 

mitigating witnesses at trial. The State subsequently moved to dismiss defendant’s 

postconviction petition. The State specifically argued that defendant’s claim regarding the failure 

to prove sexual penetration was res judicata because this argument was raised and rejected on 

direct appeal. Following a hearing in January 2008, the trial court dismissed defendant’s 
No. 1-17-1924 

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postconviction petition and made the following statements regarding defendant’s claim of 

reasonable doubt. 

 “Next, with regard to the portion of the motion to dismiss that addresses 

the additional issue filed by the defendant November 17th of 2006, the defendant 

once again contests the sexual penetration in this matter. The Court finds, first and 

foremost, I have read the Appellate Court opinion. I have read what Judge Nealis 

said at [defendant’s] sentencing hearing, and I have read the records. 

 First, the Appellate Court has found, and they viewed the tape, and 

defense has asked this Court again to review the tape that is in evidence. The 

Appellate Court found – clearly, they addressed it and found that there was 

penetration by the defendant of the young victim in this matter. Judge Nealis in 

his findings found that there was penetration of the young victim in this matter. 

Both the Appellate Court and the trial judge reviewed the tape. The Court, this 

Court has not reviewed the tape.

 Number one, this issue has been decided. The defendant is barred by the 

doctrine of res judicata in this matter and waiver. The issue has been decided on 

appeal. There is nothing to ---that this Court needs to decide at this point. That 

issue has been decided, and he is barred from this Court deciding that issue by the 

doctrine of res judicata.”

¶ 11 Defendant appealed the trial court’s second-stage dismissal of his postconviction petition. 

In his appeal, defendant argued that his postconviction petition made a substantial showing that 

his trial attorney rendered ineffective assistance by failing to call witnesses to testify in 

mitigation at his sentencing hearing. This court affirmed the trial court’s dismissal of his 
No. 1-17-1924 

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postconviction petition. People v. Jacobs, No. 1-08-0306 (2009) (unpublished order under 

Supreme Court Rule 23).

¶ 12 In March 2017, defendant filed a pro se motion for leave to file a successive 

postconviction petition and argued he satisfied the cause and prejudice test because: (1) the trial 

court erred in dismissing his sufficiency of the evidence claim as res judicata; (2) his 

postconviction trial and appellate counsel were both ineffective for failing to challenge the 

dismissal of the sufficiency of the evidence claim as res judicata; and (3) his sufficiency of the 

evidence argument presented a colorable claim of actual innocence. His pro se petition asserted 

that he was actually innocent based on the holding in Maggette and the evidence presented at 

trial. In May 2017, defendant filed a pro se additional issue for his successive petition arguing 

that the trial court erred in admitting the videotape of the crimes without foundation. 

¶ 13 In June 2017, the trial court denied defendant’s motion for leave to file his successive 

postconviction petition. The court held that defendant did not satisfy the cause and prejudice test 

and made the following findings.

“The defendant does not show to this Court why he should be allowed to 

file a successive post-conviction petition. 

He sites [sic] one case in particular, that being People v. Magette [sic]*** 

195 Ill.2d. 336, a 2001 case. The defendant indicates there is new matter that the 

Court should consider in determining this post-conviction petition. 

 The defendant cited People v. Magette [sic] in his original petition in 

2006. It was cited as an additional issue. The Court has already dealt with this 

issue with the defendant.

 In addition, the defendant certainly does not -- he does not demonstrate 
No. 1-17-1924 

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cause to allow the successive petition.

He does not pass the cause and prejudice standard which this Court must 

find for the defendant to be allowed to file what is a successive post-conviction 

petition since the defendant has already brought issues before this Court in a postconviction petition that has been denied, has been affirmed by the Illinois 

Appellate Court.” 

¶ 14 This appeal follows.

¶ 15 On appeal, defendant argues that the trial court erred in denying him leave to file his 

successive postconviction petition because he satisfied the cause and prejudice test. According to 

defendant, he established cause due to his postconviction appellate counsel’s ineffectiveness for 

failing to present the sufficiency of evidence issue on appeal and prejudice was satisfied because 

the State failed to prove a required element of aggravated criminal sexual assault, sexual 

penetration, based on the holding in Maggette.

¶ 16 The Illinois Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 to 

122-8 (West 2016)) provides a tool by which those under criminal sentence in this state can 

assert that their convictions were the result of a substantial denial of their rights under the United 

States Constitution or the Illinois Constitution or both. 725 ILCS 5/122-1(a) (West 2016); 

People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). Postconviction relief is limited to 

constitutional deprivations that occurred at the original trial. Id. at 380. “A proceeding brought 

under the [Post-Conviction Act] is not an appeal of a defendant’s underlying judgment. Rather, 

it is a collateral attack on the judgment.” People v. Evans, 186 Ill. 2d 83, 89 (1999). 

¶ 17 Only one postconviction proceeding is contemplated under the Act (People v. Edwards, 

2012 IL 111711, ¶ 22) and a defendant seeking to file a successive postconviction petition must 
No. 1-17-1924 

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first obtain leave of court (People v. Tidwell, 236 Ill. 2d 150, 157 (2010)). The bar against 

successive postconviction proceedings should not be relaxed unless: (1) a defendant can establish 

“cause and prejudice” for the failure to raise the claim earlier; or (2) he can show actual 

innocence under the “fundamental miscarriage of justice” exception. Edwards, 2012 IL 111711, 

¶¶ 22, 23; People v. Smith, 2014 IL 115946, ¶ 34. 

¶ 18 The cause and prejudice standard is higher than the normal first-stage “frivolous or 

patently without merit” standard applied to initial petitions. Edwards, 2012 IL 111711, ¶¶ 25-29; 

Smith, 2014 IL 115946, ¶ 34 (“the cause-and-prejudice test for a successive petition involves a 

higher standard than the first-stage frivolous or patently without merit standard that is set forth in 

section 122-2.1(a)(2) of the Act”). Under the cause and prejudice test, a defendant must establish 

both: (1) cause for his or her failure to raise the claim earlier; and (2) prejudice stemming from 

his or her failure to do so. Edwards, 2012 IL 111711, ¶ 22 (citing People v. Pitsonbarger, 205 

Ill. 2d 444, 459 (2002)). “A defendant shows cause ‘by identifying an objective factor that 

impeded his or her ability to raise a specific claim during his or her initial post-conviction 

proceedings.’ ” People v. Wrice, 2012 IL 111860, ¶ 48 (quoting 725 ILCS 5/122-1(f) (West 

2014)). In other words, to establish “cause” a defendant must articulate why he could not have 

discovered the claim earlier through the exercise of due diligence. People v. Wideman, 2016 IL 

App (1st) 123092, ¶ 72. A defendant shows prejudice by demonstrating that the claim so infected 

the trial that the resulting conviction or sentence violated due process. Wrice, 2012 IL 111860, 

¶ 48 “ ‘[I]ssues that were raised and decided on direct appeal are barred from consideration by 

the doctrine of res judicata; issues that could have been raised, but were not, are considered 

waived.’ ” People v. Allen, 2015 IL 113135, ¶ 20 (quoting People v. Pitsonbarger, 205 Ill. 2d 

444, 456 (2002)). “A ruling on an initial post-conviction petition has res judicata effect with 
No. 1-17-1924 

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respect to all claims that were raised or could have been raised on the initial petition.” People v. 

Orange, 195 Ill. 2d 437, 449 (2001). 

¶ 19 Here, defendant contends that he was not barred by res judicata for his sufficiency of the 

evidence claim because his postconviction appellate counsel was ineffective for failing to raise 

the issue on appeal. Though framed as an ineffective assistance claim, the crux of defendant’s 

argument remains the same as in his initial postconviction, i.e., his contention that the holding in 

Maggette, which was issued after defendant’s direct appeal, changed the law regarding the 

element of “sexual penetration” for the charge of aggravated criminal sexual assault. We reject 

defendant’s argument and find the claims barred by res judicata for the reasons that follow.

¶ 20 At the time the offenses occurred in 1989, a person committed the offense of aggravated 

criminal sexual assault when “the accused was 17 years of age or over and commit[ted] an act of 

sexual penetration with a victim who was under 13 years of age when the act was committed.” 

Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1). Under section 12-12(f) of the Criminal Code of 

1961 (Code), “sexual penetration” was defined as 

“any contact, however slight, between the sex organ of one person and the sex 

organ, mouth or anus of another person, or any intrusion, however slight, of any 

part of the body of one person or of any animal or object into the sex organ or 

anus of another person, including but not limited to cunnilingus, fellatio or anal 

penetration. Evidence of emission of semen is not required to prove sexual 

penetration.” Ill. Rev. Stat. 1989, ch. 38, par. 12-12(f). 

¶ 21 As he does in this appeal, defendant argued in his initial postconviction petition that the 

Illinois Supreme Court’s decision in Maggette, 195 Ill. 2d 336, constituted a change in the law. 

In Maggette, the defendant was charged with criminal sexual assault based on conduct where he 
No. 1-17-1924 

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placed the victim's hand on his penis and where he rubbed the victim's vagina through her 

clothing. Maggette, 195 Ill. 2d at 347. The issue before the supreme court was whether a hand or 

finger constituted an “object” under the definition of sexual penetration. In construing the 

statutory definition of sexual penetration, the Maggette court interpreted the definition to 

encompass two broad categories of conduct. Id. at 346-47. The first category included any 

contact between the sex organ or anus of one person and an object, sex organ, mouth, or anus of 

another person (the contact clause). Id. at 347. The second category included any intrusion, 

however slight, of any part of the body of one person or of any animal or object into the sex 

organ or anus of another person (the intrusion clause). Id. The supreme court concluded that the 

word “object” in the contact clause was limited to inanimate objects, and hands or fingers were 

not objects. Id. at 349-50. Thus, the supreme court in Maggette limited the definition of sexual 

penetration with a hand or finger to situations where actual intrusion occurred, not mere contact. 

¶ 22 According to defendant, his actions were not sufficient to establish sexual penetration, as 

set forth under Maggette, and his conviction for aggravated criminal sexual assault cannot stand. 

We disagree and find defendant’s reliance on Maggette to be misplaced. Maggette involved the 

contact clause in the statutory definition of sexual penetration, but in this case, defendant was 

clearly charged under the intrusion clause of sexual penetration. 

¶ 23 The indictment for aggravated criminal sexual assault alleged that defendant: 

“WAS SEVENTEEN YEARS OF AGE OR OVER AND COMMITTED AN 

ACT OF SEXUAL PENETRATION UPON [A.J.], TO WIT: AN INTRUSION 

IN THAT [DEFENDANT] INSERTED HIS FINGERS INTO [A.J.’S] VAGINA

OR ANUS AND [A.J.] WAS UNDER THIRTEEN YEARS OF AGE WHEN 

THE ACT OF SEXUAL PENETRATION WAS COMMITTED.” 
No. 1-17-1924 

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The charging instrument specifically alleged an intrusion into the victim’s vagina. 

¶ 24 Under this indictment, the State was required to prove beyond a reasonable doubt that 

defendant “inserted” his fingers into the victim’s vagina. At his trial, defendant asserted that the 

State had failed to prove that he had inserted his fingers into A.J.’s vagina. The trial court 

reviewed the videotape of the sexual assault and found that the evidence “clearly” showed that 

defendant “manipulate[ed] his fingers” into the area of A.J.’s vagina and anus and he “pushe[d] 

his fingers up into this area making more than incidental contact, rubbing his fingers, moving 

them in and out, in an in-and-out manner is clearly depicted on the tape.” Later, defendant 

challenged the sufficiency of the evidence on appeal and asserted that the videotapes did not 

show any intrusion into A.J.’s vagina or anus. The reviewing court disagreed and after it 

“carefully reviewed” the videotapes of the sexual assault, held that “those tapes contain evidence

sufficient to justify the conclusion” of the trial court that defendant committed the offense of 

aggravated criminal sexual assault. Jacobs, No. 1-97-3957, at 6. Since defendant has already 

litigated this challenge to the sufficiency of the evidence, defendant’s successive postconviction 

petition is barred from consideration by the doctrine of res judicata. People v. Allen, 2015 IL 

113135, ¶ 20. 

¶ 25 Because defendant’s claim of ineffective assistance of postconviction appellate counsel 

was premised on the failure to raise a claim barred by res judicata, this claim is without merit. 

See People v. Simms, 192 Ill. 2d 348, 360 (2000) (a defendant “may not avoid the bar of res 

judicata simply by rephrasing issues previously addressed on direct appeal); People v. Ward, 187 

Ill. 2d 249, 259-60 (1999) (a claim of ineffective assistance of appellate counsel cannot prevail 

when the underlying claim lacks merit). Accordingly, since defendant cannot satisfy the cause 

and prejudice test, the trial court properly denied defendant leave to file his successive 
No. 1-17-1924 

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postconviction petition. 

¶ 26 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook 

County. 

¶ 27 Affirmed.