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2021 IL App (5th) 190123-U 

NO. 5-19-0123 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ 

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

 ) Circuit Court of

Plaintiff-Appellee, ) St. Clair County. 

 ) 

v. ) No. 06-CF-731 

 ) 

LAQUIZE McMATH, ) Honorable 

 ) Julie K. Katz, 

Defendant-Appellant. ) Judge, presiding.

______________________________________________________________________________ 

JUSTICE WHARTON delivered the judgment of the court.

Justices Barberis and Vaughan concurred in the judgment.

 

 ORDER

¶ 1 Held: The circuit court did not err in denying the defendant’s motion for leave to file a 

successive postconviction petition, and since any argument to the contrary would 

lack merit, the defendant’s appointed counsel on appeal is granted leave to 

withdraw, and the judgment of the circuit court is affirmed. 

¶ 2 The defendant, Laquize McMath, is before this court for the fourth time in the instant case. 

He appeals from the circuit court’s order denying his motion for leave to file a (second) successive 

postconviction petition. The defendant’s court-appointed attorney in this appeal, the Office of the 

State Appellate Defender (OSAD), has concluded that this appeal lacks merit and, on that basis, 

has filed a motion for leave to withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551 

(1987)), along with a memorandum of law in support of the motion. OSAD properly served the 

defendant with a copy of its motion and memorandum. This court gave the defendant an 

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).

NOTICE

Decision filed 12/06/21. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Petition for 

Rehearing or the disposition of 

the same.
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opportunity to file a pro se response, etc., objecting to OSAD’s withdrawal motion or explaining 

why this appeal has merit, but the defendant has not taken advantage of that opportunity. This 

court has examined OSAD’s Finley motion and memorandum, as well as the entire record on 

appeal and this court’s orders in the previous appeals, and has determined that this appeal does 

indeed lack merit. Accordingly, OSAD’s Finley motion must be granted, and the judgment of the 

circuit court must be affirmed.

¶ 3 BACKGROUND

¶ 4 In 2007, a jury found the defendant guilty of the first degree murder of Larry Townsend, 

and the circuit court sentenced him to imprisonment for a term of 32 years. On direct appeal, the 

defendant, through his appointed counsel, OSAD, argued only that trial counsel had provided 

ineffective assistance by failing to call his brother to testify as an alibi witness and failing to call 

three other people to testify as occurrence witnesses. This court rejected the argument and affirmed 

the judgment of conviction. People v. McMath, No. 5-07-0496 (2008) (unpublished order under 

Illinois Supreme Court Rule 23).

¶ 5 In 2009, the defendant filed a pro se petition for relief under the Post-Conviction Hearing 

Act (725 ILCS 5/122-1 et seq. (West 2008)). The defendant asserted that he was actually innocent 

of first degree murder, as shown by (i) the alibi testimony that could be presented by his brother

and mother and (ii) the fact that all three of the State’s occurrence witnesses had criminal charges 

pending against them at the time of the defendant’s trial, thus establishing that they perjured 

themselves or at least casting doubt on the veracity of their testimony. The defendant also asserted 

that defense counsel provided ineffective assistance by failing to call those alibi witnesses. The 

circuit court summarily dismissed the postconviction petition as frivolous and patently without 

merit. The court noted that the postconviction petition was not accompanied by an affidavit from 
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the defendant’s brother, and that the affidavit from his mother did not preclude the defendant’s 

committing the charged crime. The defendant appealed.

¶ 6 On appeal from the summary dismissal of his 2009 postconviction petition, the defendant

was represented by appointed counsel OSAD. One of the arguments presented by OSAD on the 

defendant’s behalf was that both trial counsel and direct-appeal counsel provided ineffective 

assistance by failing to challenge an erroneous jury instruction on eyewitness identification, which 

was Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000) (hereinafter IPI Criminal 

4th No. 3.15). The defendant relied on People v. Herron, 215 Ill. 2d 167, 191 (2005), wherein our 

Illinois Supreme Court held that IPI Criminal 4th No. 3.15 was “ambiguous and misleading.” The 

defendant acknowledged that his postconviction petition did not mention the jury instruction, and 

that it did not specifically allege ineffective assistance by either trial or appellate counsel for failing 

to challenge the instruction. This court found that this ineffective-assistance issue could have been 

raised, and should have been raised, on direct appeal, and that the issue was forfeited for appellate 

review. This court affirmed the circuit court’s order summarily dismissing the postconviction 

petition. People v. McMath, Nos. 5-09-0296, 5-09-0546 (cons.) (2010) (unpublished order under 

Illinois Supreme Court Rule 23). 

¶ 7 In 2012, the defendant filed a motion for leave to file a successive postconviction petition. 

See 725 ILCS 5/122-1(f) (West 2012). The successive petition that he sought to file echoed the 

forfeited argument that he made to this court in his first collateral appeal. It alleged that both trial 

counsel and direct-appeal counsel provided ineffective assistance by failing to challenge the jury 

instruction on eyewitness identification, IPI Criminal 4th No. 3.15, an erroneous instruction that 

deprived the defendant of due process. The defendant again relied on Herron, which held that IPI 
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Criminal 4th No. 3.15 was ambiguous and misleading. The circuit court denied the motion for 

leave to file a successive postconviction petition. The defendant appealed.

¶ 8 On appeal from the denial of leave, the defendant’s appointed counsel, OSAD, filed a 

Finley motion to withdraw. This court found that the defendant had failed to show either cause or 

prejudice, that is, he had failed to show cause for not including the due-process claim in his original 

postconviction petition and he had failed to show prejudice resulting from the erroneous jury 

instruction. In regard to prejudice, this court noted that at trial, the defendant was positively 

identified by three men who knew him, and this court found that their testimonies “clearly showed 

that the defendant was the shooter.” People v. McMath, 2014 IL App (5th) 120398-U, ¶ 21. “Even 

if the correct jury instruction had been given,” this court concluded on the issue of prejudice, “the 

evidence was not so closely balanced that a reasonable trier of fact could have found the defendant 

not guilty.” Id. This lack of prejudice also was fatal to the claim of ineffective assistance by trial 

counsel and direct-appeal counsel for failure to challenge the erroneous jury instruction, this court 

ruled. OSAD was allowed to withdraw as counsel, and the judgment of the circuit court, denying 

leave to file a successive petition, was affirmed. Id. ¶ 25. 

¶ 9 On January 14, 2019, the defendant filed the motion that is the subject of the instant appeal 

—his (second) motion for leave to file a successive postconviction petition. The successive 

petition that he sought to file echoed, again, the forfeited argument that he made to this court in 

his first postconviction appeal. The defendant claimed that his appointed attorney in his first 

postconviction appeal failed to amend the postconviction petition (the one filed in 2009) so as to 

allege that trial counsel and direct-appeal counsel were ineffective for failing to challenge the 

erroneous jury instruction on eyewitness identification, IPI Criminal 4th No. 3.15. The defendant 

again noted that our Illinois Supreme Court in Herron held that IPI Criminal 4th No. 3.15 was 
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ambiguous and misleading. The defendant also noted that instructing the jury with IPI Criminal 

4th No. 3.15 was treated as plain error in the Herron case. In addition, the defendant argued that 

direct-appeal counsel was ineffective for failing to raise the issue of the erroneous eyewitnessidentification instruction, regardless of whether trial counsel preserved it for review. The 

defendant prayed for a new trial.

¶ 10 In a written order dated January 16, 2019, the circuit court denied the defendant leave to 

file a successive postconviction. By way of explanation, the court stated, inter alia, that the matters 

raised were res judicata. The defendant now appeals from that denial order. 

¶ 11 ANALYSIS

¶ 12 This appeal is from the circuit court’s order denying the defendant’s (second) motion for 

leave to file a successive postconviction petition. Appellate review is de novo. People v. Wrice, 

2012 IL 111860, ¶ 50. 

¶ 13 As previously noted, the defendant’s appointed attorney in this appeal, OSAD, has filed a 

Finley motion for leave to withdraw as counsel, along with a memorandum of law in support of 

the motion. In its memorandum, OSAD suggests a potential issue on appeal, namely, whether the 

defendant satisfied the cause-and-prejudice test for the filing of a successive postconviction 

petition.

¶ 14 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides 

a means whereby a criminal defendant may assert that his conviction resulted from a substantial 

denial of his federal or state constitutional rights. Id. § 122-1(a). The Act contemplates the filing 

of only one postconviction petition. Id. § 122-1(f); People v. Jones, 191 Ill. 2d 194, 198 (2000). 

Where a criminal defendant files an initial postconviction petition, and the circuit court rules on 

that petition, the ruling has res judicata effect with respect to all claims that were raised, and all 
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claims that could have been raised, in the initial petition. Jones, 191 Ill. 2d at 198. “As a 

consequence, a defendant faces a daunting procedural hurdle when bringing a successive postconviction petition.” Id. A defendant must obtain leave of court to file a successive petition, and 

in order to obtain leave of court, he must satisfy the cause-and-prejudice test. 725 ILCS 5/122-

1(f) (West 2016); Jones, 191 Ill. 2d at 199. That is, he must show 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,” and he must show prejudice by “demonstrating that the claim not 

raised during his or her initial post-conviction proceedings so infected the trial that the resulting 

conviction or sentence violated due process.” 725 ILCS 5/122-1(f) (West 2016). Both elements 

of the cause-and-prejudice test must be satisfied in order for the defendant to prevail. People v. 

Pitsonbarger, 205 Ill. 2d 444, 464 (2002). Unless the defendant satisfies the cause-and-prejudice 

test, the claims in a successive petition are barred; they will not be considered on the merits. Jones, 

191 Ill. 2d at 199. 

¶ 15 Here—regardless of what else can be said about this appeal—the defendant, in his (second) 

motion for leave to file a successive postconviction petition, failed to show prejudice. That is, he 

failed to demonstrate that the claims not raised during his initial postconviction proceedings, all of 

which concerned the erroneous jury instruction on eyewitness identification, so infected the trial 

that the resulting conviction violated due process. Indeed, this court already has found that the 

trial testimonies of the State’s eyewitnesses “clearly showed that the defendant was the shooter,” 

and this court already has concluded that “[e]ven if the correct jury instruction had been given, the 

evidence was not so closely balanced that a reasonable trier of fact could have found the defendant 

not guilty.” McMath, 2014 IL App (5th) 120398-U, ¶ 21. The erroneous jury instruction did not 

badly infect the trial. This conclusion about prejudice is also fatal to all of the various ineffective-
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assistance claims surrounding the erroneous-instruction issue. Accordingly, the circuit court did 

not err in denying the defendant leave to file a successive postconviction petition.

¶ 16 CONCLUSION

¶ 17 For the reasons stated above, the circuit court did not err in denying the defendant’s 

(second) motion for leave to file a successive postconviction petition. No contrary argument would 

have merit. Accordingly, OSAD is granted leave to withdraw as counsel on appeal, and the 

judgment of the circuit court is affirmed.

¶ 18 Motion granted; judgment affirmed.