Illinois Official Reports

Appellate Court

People v. Smith, 2020 IL App (3d) 170666

Appellate Court 

Caption

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

MICKEY D. SMITH, Defendant-Appellant.

District & No. Third District 

No. 3-17-0666

Filed July 28, 2020

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 10-CF-1345; the 

Hon. Amy Bertani-Tomczak, Judge, presiding.

Judgment Vacated and remanded with directions.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, Roxanna A. Mason, and Mario 

Kladis, of State Appellate Defender’s Office, of Chicago, for 

appellant.

James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, 

Thomas D. Arado, and Nicholas A. Atwood, of State’s Attorneys 

Appellate Prosecutor’s Office, of counsel), for the People.
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Panel JUSTICE HOLDRIDGE delivered the judgment of the court, with 

opinion.

Presiding Justice Lytton concurred in the judgment and opinion.

Justice Schmidt dissented, with opinion.

OPINION

¶ 1 The defendant, Mickey D. Smith, appeals the Will County circuit court’s denial of his 

motion for leave to file a successive postconviction petition. Specifically, the defendant argues 

that the court erred in seeking and relying on input from the State in denying his motion.

¶ 2 I. BACKGROUND

¶ 3 The defendant was charged by indictment with two counts of first degree murder (720 

ILCS 5/9-1(a)(1), (a)(2) (West 2010)) and one count of being an armed habitual criminal (id.

§ 24-1.7). The defendant pled guilty to one count of first degree murder in exchange for the 

State’s agreement to dismiss the other two charges, withdraw its intent to seek enhanced 

sentencing, and recommend a sentence of 30 years’ imprisonment. The court accepted the 

defendant’s plea and sentenced him to 30 years’ imprisonment. The defendant did not file a 

direct appeal.

¶ 4 Approximately three months after pleading guilty, the defendant filed a pro se

postconviction petition. The petition alleged that the defendant’s plea should be vacated 

because his sentence was void. Specifically, the defendant alleged that his sentence was not 

authorized by statute because it did not contain a mandatory firearm enhancement. The circuit 

court summarily dismissed the petition. The appellate court reversed the judgment of the circuit 

court, holding that the defendant’s sentence and plea were void. People v. Smith, 2013 IL App 

(3d) 110738, ¶ 14. The supreme court reversed the judgment of the appellate court and affirmed 

the judgment of the circuit court. People v. Smith, 2015 IL 116572, ¶ 35.

¶ 5 The defendant filed a motion for leave to file a successive postconviction petition. The 

defendant sought to raise a claim that the court improperly allowed the State to amend the

indictment without filing a motion requesting the court’s permission or resubmitting it to the 

grand jury.

¶ 6 At a status hearing at which the defendant was not present, the court noted that the motion 

for leave to file a successive petition had been filed. The court asked: “I think the State is 

supposed to respond to this, right?” The court then granted an assistant state’s attorney’s 

request to continue the matter. The State filed an “Objection to Motion for Leave to File a 

Successive Post-Conviction Petition,” which argued that the defendant had not met the cause 

and prejudice standard. The defendant filed a response.

¶ 7 During a hearing at which the defendant was not present, the circuit court stated that it was 

denying the defendant’s motion for leave to file a successive postconviction petition and 

“granting the State’s motion to dismiss.”
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¶ 8 II. ANALYSIS

¶ 9 The defendant argues that the circuit court improperly sought and relied on the State’s input 

in denying his motion for leave to file a successive postconviction petition. The State concedes 

that the circuit court erred in seeking and relying on its input at the cause and prejudice stage, 

and we accept the State’s confession of error on this point. Our supreme court held in People 

v. Bailey, 2017 IL 121450, ¶ 20, that it was “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 

[postconviction] petition.”

¶ 10 The defendant argues that the case should be remanded for further proceedings on his 

motion for leave to file a successive postconviction petition as a result of this error. The State 

requests, in the interest of judicial economy, that we conduct an independent cause and 

prejudice determination rather than remanding the matter. We note that the supreme court and 

appellate court have reviewed the merits of defendants’ motions for leave to file successive 

postconviction petitions in several cases in the interest of judicial economy. See, e.g., id. ¶ 42; 

People v. Conway, 2019 IL App (2d) 170196, ¶ 23; People v. Ames, 2019 IL App (4th) 170569, 

¶ 23.

¶ 11 However, we believe that the best practice is to remand the matter to the circuit court to 

conduct an examination of the motion for leave without the State’s improper participation. A 

new judge who has not already heard the State’s objection should preside over the proceeding 

on remand. This will ensure that the circuit court conducts a truly independent examination of 

the motion for leave. See Bailey, 2017 IL 121450, ¶ 24 (“[W]e find that the [Post-Conviction 

Hearing] Act contemplates an independent determination by the circuit court.”). If the motion 

for leave is denied by the circuit court after an independent determination, the defendant will 

then have the opportunity to seek review of the circuit court’s decision in this court. 

¶ 12 Notably, in the instant appeal, neither party has made any argument regarding the merits 

of the defendant’s motion for leave to file a successive postconviction petition. The defendant 

requests only that we remand the matter, and the State expressly declines to make an argument 

regarding the merits due to the concerns set forth in Justice Holdridge’s special concurrence in 

People v. Baller, 2018 IL App (3d) 160165, ¶¶ 20-23 (Holdridge, J., specially concurring). 

Specifically, Justice Holdridge cautioned that appellate argument from the State may influence 

the appellate court’s decision, which would violate the rule set forth in Bailey. Id. Because 

appellate argument on the merits of the motion for leave has not been provided by either party 

and because such argument from the State—the only party requesting that we review the 

merits—would be improper at this stage, the more appropriate procedure is to remand the 

matter to the circuit court.

¶ 13 The dissent asserts that our decision to remand the matter is based on this court’s earlier 

decision in People v. Munson, 2018 IL App (3d) 150544. In Munson, this court held that the 

Bailey court reached the merits of the motion for leave to file a successive postconviction 

petition as an exercise of supervisory authority, which the appellate court lacks. Id. ¶ 10. 

However, our holding in the instant case is not that remand is required based on the appellate 

court’s lack of supervisory authority. Rather, our holding is that remand is the more appropriate 

remedy based on the Bailey court’s reasoning that the “the [Post-Conviction Hearing] Act 

contemplates an independent determination by the circuit court” (emphasis added) (Bailey, 

2017 IL 121450, ¶ 24) and the fact that neither party has argued the merits of the motion for 

leave (supra ¶ 12).
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¶ 14 We acknowledge that the Bailey court went on to address the merits of the motion for leave 

to file a successive postconviction petition and that other cases have held that the appellate 

court may reach the merits in the interest of judicial economy. See Bailey, 2017 IL 121450, 

¶ 42; Conway, 2019 IL App (2d) 170196, ¶ 23; Ames, 2019 IL App (4th) 170569, ¶ 23. 

However, none of these cases have held that the appellate court is required to reach the merits. 

Even if we accept that we have the power to reach the merits, we decline to do so for the 

aforementioned reasons.

¶ 15 Finally, the dissent suggests that following our logic regarding the need for a new judge on 

remand, this panel may be prohibited from deciding the defendant’s next appeal. We believe 

these concerns are unfounded. Unlike the original trial judge, this panel has not considered the 

merits of the defendant’s motion for leave to file a successive postconviction petition.

¶ 16 III. CONCLUSION

¶ 17 The judgment of the circuit court of Will County is vacated. The matter is remanded with 

directions for the circuit court to conduct an independent determination of the defendant’s 

motion for leave to file a successive postconviction petition before a new judge.

¶ 18 Vacated and remanded with directions.

¶ 19 JUSTICE SCHMIDT, dissenting:

¶ 20 I respectfully dissent. I agree with the majority that the trial court erred in allowing the 

State to participate in the court’s determination that defendant should be denied leave to file a 

successive postconviction petition. I part company with the majority when it determined that 

Bailey requires reversal and remand. I also disagree that the cause should be reassigned to a 

different judge on remand.

¶ 21 In Bailey, the supreme court found that the trial court erred in allowing the State’s 

participation at the motion for leave to file a successive postconviction stage. People v. Bailey, 

2017 IL 121450, ¶ 41. Unlike the majority in this case, the supreme court went on to review 

the merits of defendant’s motion in the interests of judicial economy. Id. ¶ 42. The supreme 

court ultimately affirmed the trial court’s denial of leave as the record demonstrated that 

defendant failed to establish cause and prejudice to file a successive postconviction petition. 

Id. ¶ 46. That is, any error was harmless beyond a reasonable doubt.

¶ 22 The genesis of the majority’s belief that remand is necessary under Bailey comes from this 

court’s decision in People v. Munson, 2018 IL App (3d) 150544. Munson incorrectly construed 

and applied Bailey. Munson assumed that the supreme court in Bailey reached the merits of the 

motion for leave as an exercise of its supervisory authority, which this court lacks. Id. ¶ 10.

Without explanation, this court’s train jumped the tracks in Munson when it baldly asserted 

that to review the merits of defendant’s motion would involve an exercise of supervisory 

authority. Id. The problem with this conclusion is that no such language exists in the Bailey

decision. If the supreme court exercised its supervisory authority, then the Bailey decision 

would have said as much. See People v. Davis, 156 Ill. 2d 149, 160 (1993) (explicitly noting 

that the supreme court was exercising its supervisory authority).

¶ 23 Our supreme court exercises its supervisory authority “only if the normal appellate process 

will not afford adequate relief and the dispute involves a matter important to the administration
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of justice, or where intervention is necessary to keep an inferior court or tribunal from acting 

beyond the scope of its authority.” (Internal quotation marks omitted.) Vasquez Gonzalez v. 

Union Health Service, Inc., 2018 IL 123025, ¶ 17. Nothing about the circumstances in Bailey

suggest that the normal appellate process would provide inadequate relief. Nor did the supreme 

court need to intervene to prevent the lower court from exceeding its authority. Instead of 

exercising its supervisory authority, Bailey did what courts of review do all the time: it 

reviewed the merits of defendant’s motion in the interest of judicial economy. 

¶ 24 The majority acknowledges authority rejecting Munson’s interpretation of Bailey. Supra

¶ 10 (citing People v. Conway, 2019 IL App (2d) 170196, and People v. Ames, 2019 IL App 

(4th) 170569). Both Conway and Ames rejected the notion that the supreme court exercised its 

supervisory authority in Bailey. These decisions correctly observed that the Bailey court 

reached the merits of defendant’s motion for leave in the interest of judicial economy. Conway, 

2019 IL App (2d) 170196, ¶ 15; Ames, 2019 IL App (4th) 170569, ¶ 23. Therefore, Conway

and Ames both held that the appellate court could consider the merits of a motion for leave.

We have always reviewed the trial court’s judgment rather than its reasoning, and we may 

affirm on any basis supported by the record. See, e.g., People v. Olsson, 2015 IL App (2d) 

140955, ¶ 17. Any other result would be an absolute waste of judicial resources.

¶ 25 Moreover, the majority ignores the longstanding principle that successive postconviction 

petitions are disfavored. See People v. Edwards, 2012 IL 111711, ¶ 29 (citing People v. Wright, 

189 Ill. 2d 1, 38 (1999) (Freeman, C.J., specially concurring, joined by McMorrow, J.)). There 

is no constitutional right to a successive postconviction petition, only a statutory right. Despite 

this, the majority gives defendant’s motion for leave “most favored status,” finding it exempt 

from the well-settled rule that we can affirm on any basis in the record. So, if the majority is 

correct, the supreme court in Bailey must have signaled its invocation of its supervisory 

authority with a dog whistle heard only by chosen members of the Third District.

¶ 26 In fairness to the majority, it would not be the first time the supreme court said one thing 

then later explained that it meant something else. For example, in construing Illinois Supreme 

Court Rule 604(d) (eff. July 1, 2006), the supreme court explained that its use of the word “or” 

in Rule 604(d) actually meant “and.” See People v. Tousignant, 2014 IL 115329, ¶ 20. 

¶ 27 In this case, the record is clear that defendant failed to allege facts to support cause for 

leave to file his successive postconviction petition. Defendant alleged that the trial court 

improperly allowed the State to amend the indictment without filing a motion requesting the 

court’s permission or resubmitting it to the grand jury. Defendant claimed he had cause to 

excuse his failure to raise this issue in his first postconviction petition “because the earlier 

decision did not adequately resolve all of the issues.” How did this prevent defendant from 

raising his successive claim in his original postconviction petition? Defendant failed to explain 

this. The truth is that nothing about the earlier proceedings prevented defendant from raising 

this claim earlier. There is no need to discuss prejudice.

¶ 28 Finally, to literally add insult to injury, the majority goes on to hold that the case should be 

assigned to a different judge on remand. Supra ¶ 17. There is no absolute right to a substitution 

of judge at a postconviction proceeding. People v. Hall, 157 Ill. 2d 324, 331 (1993). It is an 

insult to the bench to assume the trial judge is incapable of making a fair and independent 

decision on remand. I fail to see any malicious intent in the trial court’s error in allowing the 

State’s input, and there is “no indication that the court will not follow the law on remand.” 

People v. White, 2017 IL App (1st) 142358, ¶ 43. Following the majority’s logic, will this 
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panel be prohibited from deciding defendants next appeal? That is absurd. Trial judges hear 

inadmissible evidence and objectionable arguments on virtually a daily basis. Absent evidence 

to the contrary, we presume they follow the law.

¶ 29 I would affirm the trial court.