ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. English, 2011 IL App (3d) 100764

Appellate Court

Caption

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

SCOTT F. ENGLISH, Defendant-Appellant.

 District & No. Third District

Docket No. 3–10–0764

Filed

Rehearing denied

June 27, 2011

July 29, 2011

Held

(Note: This syllabus

constitutes no part of the

opinion of the court but

has been prepared by the

Reporter of Decisions for

the convenience of the

reader.)

Consideration of defendant’s postconviction claim that his conviction

for aggravated battery of a child could not serve as the predicate forcible

felony to support his conviction for felony murder was barred by the

doctrine of res judicata, since defendant could have raised that issue in

his direct appeal, but he did not, and consideration of defendant’s claim

that his appellate counsel was ineffective in failing to raise the issue in

defendant’s direct appeal was barred on the ground that defendant’s

claim was raised for the first time in his reply brief.

Decision Under 

Review

Appeal from the Circuit Court of Henry County, No. 95–CF–305; the

Hon. Charles H. Stengel, Judge, presiding.

Judgment Affirmed.
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Counsel on

Appeal

Kerry J. Bryson (argued), of State Appellate Defender’s Office, of

Ottawa, for appellant.

Terence M. Patton, State’s Attorney, of Cambridge (Terry A. Mertel

and Gary F. Gnidovec (argued), both of State’s Attorneys Appellate

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

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

Presiding Justice Carter and Justice Wright concurred in the judgment

and opinion.

OPINION

¶ 1 Defendant, Scott English, appeals the dismissal of his postconviction petition. Following

a hearing on the State’s motion to dismiss, the trial court found the doctrine of res judicata

barred consideration of defendant’s claims. Defendant asserts the trial court erred in

dismissing his petition as the acts constituting his felony murder conviction arose from and

were inherent in the underlying felony of aggravated battery of a child. We affirm.

¶ 2 FACTS

¶ 3 As this court has previously considered this matter in People v. English, No. 3–96–0767

(2000) (unpublished order under Supreme Court Rule 23) (English I), and People v. English,

381 Ill. App. 3d 906 (2008) (English II), and the facts are well known to the parties, we will

only briefly recite the facts of the case.

¶ 4 In October of 1995, the State charged defendant in the death of three-year-old Jami Sue

Pollock. Originally, the State charged defendant with first degree murder (720 ILCS

5/9–1(a)(2) (West 1996)), first degree felony murder predicated on the felony of aggravated

battery of a child (720 ILCS 5/9–1(a)(3) (West 1996)), and aggravated battery of a child (720

ILCS 5/12–4.3(a) (West 1996)). Evidence adduced at trial showed Jami had 10 separate

bruises on her body when brought into the emergency room. The bruises appeared to range

between one week and one day old. Defendant admitted to the police that he struck Jami a

number of times as routine measures of discipline on the night she was found unresponsive,

but could not tell exactly where on her body he struck her as she was bundled in blankets.

¶ 5 A forensic pathologist testified that, during the autopsy, she found “many, many, many”

bruises and “many, many injuries” on Jami’s body. Jami’s face was pale and bruised, as if

she “either had something pressed against her face or her face pressed against something.”

Jami had fingernail scratches on her chest that appeared self-inflicted as she tried “to scratch
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or scrape or claw something away.” Jami had an eight-centimeter bruise on the back of her

head and “massive” hemorrhaging beneath her scalp caused by “heavy, rapid or massive”

force to Jami’s head.

¶ 6 According to the pathologist, Jami’s injuries were inconsistent with being struck as

described by defendant or wrapped too tightly in a blanket. The pathologist attributed Jami’s

death to blunt force injuries to her head and chest, and asphyxia, either of which would have

caused death.

¶ 7 At the close of trial, the circuit court granted the State’s motion to dismiss the first degree

murder charge. Over defense counsel’s objection, the circuit court refused to instruct the jury

on the offense of involuntary manslaughter. The jury found defendant guilty on the charges

of felony murder and aggravated battery of a child. The circuit court then sentenced

defendant to natural life.

¶ 8 In English I, this court held “the circuit court did not abuse its discretion when it did not

instruct the jury on involuntary manslaughter.” English I, slip op. at 11. In reaching that

conclusion, the English I court noted that the trial court instructed the jury on both

recklessness and knowing conduct and stated that, “The evidence in this case shows that

English acted with intent to cause great bodily harm. The jury found English guilty of

aggravated battery of a child and, therefore, that he acted intentionally or knowingly. It could

not also have found that he acted recklessly. Consequently, the jury found English guilty of

felony murder. Had the jury found that English merely acted recklessly, it should have

acquitted him of aggravated battery of a child and could not have convicted him of felony

murder.” English I, slip op. at 11.

¶ 9 As the statute under which the circuit court imposed defendant’s life sentence was found

to violate the single subject clause (see People v. Wooters, 188 Ill. 2d 500 (1999)), we

vacated defendant’s life sentence on direct appeal in English I and remanded for further

proceedings. English I, slip op. at 12. 

¶ 10 In 1999, during the pendency of defendant’s direct appeal, he filed a postconviction

petition, which he later voluntarily dismissed on August 6, 2003. Then, in 2004, he filed

another postconviction petition. The trial court treated the 2004 petition as a successive

petition and dismissed it on May 24, 2004, pursuant to the State’s motion. Defendant then

filed a motion to reinstate his original 1999 petition. By order entered September 26, 2005,

the trial court denied defendant’s motion to reinstate and defendant, again, appealed to this

court.

¶ 11 In English II, this court held it had no jurisdiction to consider the dismissal of defendant’s

2004 postconviction petition as the trial court dismissed that petition on May 24, 2004, and

defendant failed to file a timely notice of appeal. English II, 381 Ill. App. 3d at 909.

However, the English II court noted that defendant did, in fact, file a timely notice of appeal

after denial of his motion to reinstate his 1999 petition. In addressing that matter, the English

II court held the trial court erred in denying defendant’s motion to reinstate his 1999 petition.

English II, 381 Ill. App. 3d at 910. The court noted that defendant voluntarily dismissed his

1999 petition on August 6, 2003, and moved to reinstate the petition on August 5, 2004. As

postconviction proceedings are civil in nature, the English II court found that pursuant to
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section 13–217 of the Code of Civil Procedure (735 ILCS 5/13–217 (West 2004)), defendant

had one year to refile or reinstate his voluntarily dismissed petition. English II, 381 Ill. App.

3d at 910. As such, the English II court reversed the trial court’s denial of defendant’s motion

to reinstate his original petition and remanded “the cause to allow the trial court to reinstate

the original postconviction petition, with amendments, and treat it as an initial petition.”

English II, 381 Ill. App. 3d at 910.

¶ 12 On remand, defendant filed an amended petition, arguing that his felony murder

conviction based on the predicate felony of aggravated battery of a child must be vacated

because the acts constituting aggravated battery of a child arose from and were inherent in

the killing of the child. The State filed an answer and motion to dismiss in which it argued

that the doctrine of res judicata barred defendant’s claims and that the authorities cited by

defendant to support his conclusions were distinguishable from the case at bar.

¶ 13 A hearing took place on September 29, 2010, after which the trial court “denied”

defendant’s “amended petition for postconviction relief.” This appeal followed.

¶ 14 ANALYSIS

¶ 15 The trial court’s denial of defendant’s petition took place after a third-stage hearing. Our

supreme court has consistently maintained that at such a hearing, “the burden is on the

defendant to make a substantial showing of a deprivation of constitutional rights and the

circuit court’s decision will not be disturbed unless it is manifestly erroneous.” People v.

Coleman, 206 Ill. 2d 261, 277 (2002). “The term ‘manifest error’ means error that is ‘clearly

evident, plain and indisputable.’ ” Coleman, 206 Ill. 2d at 277 (quoting People v. Ruiz, 177

Ill. 2d 368, 384-85 (1997)). 

¶ 16 Citing People v. Morgan, 197 Ill. 2d 404 (2001), and People v. Pelt, 207 Ill. 2d 434

(2003), defendant alleged in his amended petition that the acts constituting the aggravated

battery of a child arose from and were inherent in the killing of the child. Given the holdings

of those cases, defendant maintains on appeal that the trial court erred by denying his petition

and failing to vacate his conviction for felony murder based on the predicate felony of

aggravated battery of a child.

¶ 17 The State asserts that defendant’s claim is barred by the doctrine of res judicata or

procedurally defaulted. We agree. Our supreme court has consistently held:

“Postconviction claims are limited to those claims that were not and could not have been

previously adjudicated on direct appeal. [Citation.] Claims that were raised and decided

on direct appeal are barred by res judicata and those claims that could have been raised,

but were not, are considered waived.” People v. Sanders, 238 Ill. 2d 391, 398 (2010)

(citing People v. Towns, 182 Ill. 2d 491, 502-03 (1998)).

See also People v. Petrenko, 237 Ill. 2d 490, 499 (2010) (“A postconviction proceeding is

not an appeal from the judgment of conviction, but is a collateral attack on the trial court

proceedings. [Citation.] Consequently, issues that could have been raised on direct appeal

but were not are forfeited. [Citation.] Here, defendant’s claim concerning trial counsel’s

failure to contest the validity of the search warrant is based entirely on facts contained in the

trial court record. That claim therefore could have been raised on direct appeal, and
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defendant’s failure to do so results in its forfeiture.”); People v. West, 187 Ill. 2d 418, 425

(1999) (“A post-conviction action is a collateral attack on a prior conviction and sentence.

[Citations.] *** The scope of the proceeding is limited to constitutional matters that neither

have been, nor could not have been, previously adjudicated. Any issues which could have

been raised on direct appeal, but were not, are procedurally defaulted [citation], and any

issues which have previously been decided by a reviewing court are barred by the doctrine

of res judicata [citation].”); People v. Winsett, 153 Ill. 2d 335, 346 (1992) (“It is well

established that the scope of post-conviction reviewislimited to constitutional matters which

have not been, and could not have been, previously adjudicated.”).

¶ 18 The claim raised in defendant’s postconviction petition, that his felony murder conviction

is improper as it is based on acts constituting the underlying predicate felony of aggravated

battery of a child, is based entirely on matters contained within the trial record. Undoubtedly,

defendant could have raised this issue in the direct appeal he filed in 1996. The question of

whether an aggravated battery that resulted in death could serve as the predicate felony to

sustain a felony murder conviction was not a new or novel concept in 1996. See People v.

Viser, 62 Ill. 2d 568 (1975); People v. Thurman, 223 Ill. App. 3d 196, 202 (1991)

(“Defendant argues that a charge of felony murder cannot be based on aggravated battery.

Because every murder involves an aggravated battery, defendant argues that every murder

could be charged as felony murder ***.”); People v. Bennett, 222 Ill. App. 3d 188 (1991);

People v. Szerletich, 86 Ill. App. 3d 1121 (1980).

¶ 19 The fact that cases decided after defendant’s direct appeal added authority to the long line

of cases discussing felony murder, and specifically discussing aggravated battery as the

predicate felony that serves as the basis for a felony murder conviction, in no way precluded

defendant from raising the issue he raised for the first time in his postconviction petition. See

People v. Leason, 352 Ill. App. 3d 450, 454 (2004) (“[T]he lack of precedent for a position

differs from ‘cause’ for failing to raise an issue, and a defendant must raise the issue, even

when the law is against him, to preserve it for review.”); People v. Purnell, 356 Ill. App. 3d

524 (2005) (citing the proposition quoted in Leason with approval). 

¶ 20 We find defendant could have raised the issue of whether his conviction for aggravated

battery of a child properly served as the predicate forcible felony to support his felony murder

conviction on direct appeal. He did not. As such, consideration of that issue is barred by the

doctrine of res judicata.

¶ 21 In his reply brief, defendant raises the issue of ineffective assistance of appellate counsel

for the first time. He asserts that if we found, as we have, that his claim is forfeited or barred

by the doctrine of res judicata, then we must also find his appellate counsel constitutionally

ineffective for not previously raising the claim. We disagree.

¶ 22 Almost a century ago, our supreme court noted, “Under the rules of this court and its

long[-]settled practice, questions not raised by appellants in the original brief cannot be

raised in the reply brief. A contrary practice would permit appellants to argue questions in

their reply briefs as to which counsel for appellees would have no opportunity to reply.

Th[ese] question[s] therefore need not be considered.” Holliday v. Shepherd, 269 Ill. 429,

436 (1915); see also People v. Lindsey, 72 Ill. App. 3d 764, 776 (1979); Illinois Health
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Maintenance Organization Guaranty Ass’n v. Department of Insurance, 372 Ill. App. 3d 24

(2007); People ex rel. Village of Vernon Hills v. Village of Lincolnshire, 283 Ill. App. 3d 266

(1996).

¶ 23 As defendant raised the issue of ineffective assistance of appellate counsel for the first

time in his reply brief, it need not be considered. Moreover, defendant’s claim that his direct

appellate counsel’s performance was constitutionally ineffective for failing to raise Pelt or

Morgan has no merit. 

¶ 24 In People v. Viser, 62 Ill. 2d 568 (1975), the defendant argued that an aggravated battery

of jumping on a police officer’s chest “cannot be the underlying felony in a felony murder

charge where the aggravated battery is alleged to have been committed against the person

who eventually dies.” (Internal quotation marks omitted.) Viser, 62 Ill. 2d at 577. Our

supreme court disagreed and clearly held that aggravated battery can properly serve as the

predicate felony to sufficiently support a felony murder conviction. Viser, 62 Ill. 2d at 586-

87. The Viser court noted:

“[W]e are not concerned with whether the General Assembly, in establishing the offense

of felony murder, intended to deter the criminal from the commission of rape, or robbery,

or burglary, but not to deter him from the violent assault that accompanies each of those

offenses. That kind of fragmentation of legislative purpose cannot survive the forthright

characterization of aggravated battery as one of the forcible felonies that will trigger a

charge of felony murder. What was intended was to deter the commission of any of the

enumerated forcible felonies, including aggravated battery, by holding the perpetrator

responsible for murder if death results.” Viser, 62 Ill. 2d at 580. 

¶ 25 When defendant filed his direct appeal, in 1996, Viser stood as the law of the land and

as such we fail to see how appellate counsel could have been ineffective for failing to raise

the 2001 case of Morgan or 2003 case of Pelt when filing the 1996 appeal.

¶ 26 While we acknowledge Morgan and Pelt somewhat depart from the holding in Viser, it

is clear our supreme court firmly stands behind the statements it made in Viser.

Approximately six years after Pelt, our supreme court unequivocally noted that “felony

murder predicated on aggravated battery is a legally existent crime in Illinois.” People v.

Davis, 233 Ill. 2d 244, 268 (2009). The Davis court went on to note that our supreme court

in Viser “held that felony murder predicated on aggravated battery is a valid and existing

crime” in Illinois and that “Viser has never been overruled by this court, and was essentially

reaffirmed by our most recent decision in this area in People v. Davis, 213 Ill. 2d 459, 475

(2004).” 

¶ 27 Again, as defendant has raised his ineffective assistance of appellate counsel claim for

the first time in his reply brief, we need not address the issue. Were we to address it,

however, we would find it is without merit.

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, the order of the circuit court of Henry County is affirmed.

¶ 30 Affirmed.
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