ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Little, 2012 IL App (5th) 100547

Appellate Court

Caption

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

KELVIN LITTLE, Defendant-Appellant.

 District & No. Fifth District

Docket No. 5-10-0547

Filed October 9, 2012

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.)

Defendant lost his right to a direct appeal through no fault of his own and

he used his original postconviction petition to reinstate his right to a

direct appeal and, therefore, his subsequent postconviction petition was

not a successive petition without leave of the trial court, and the denial of

the petition on that ground was reversed and the cause was remanded for

second-stage proceedings.

Decision Under 

Review

Appeal from the Circuit Court of Randolph County, No. 02-CF-160; the

Hon. Brian Babka, Judge, presiding.

Judgment Judgment vacated; cause remanded.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Deborah K. Pugh, all of State

Appellate Defender’s Office, of Chicago, for appellant. 

Randall Rodewald, State’s Attorney, of Chester (Patrick Delfino, Stephen

E. Norris, and Kelly M. Stacey, all of State’s Attorneys Appellate

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

Panel JUSTICE WEXSTTEN delivered the judgment of the court, with

opinion.

Justices Spomer and Stewart concurred in the judgment and opinion.

OPINION

¶ 1 In September 2010, the trial court entered a written order denying the defendant, Kelvin

Little, leave to file a pro se petition for postconviction relief. Contending that the trial court

wronglyconstrued his petition as a “successive” petition, the defendant argues that we should

vacate the court’s judgment and remand his cause for further proceedings. For the reasons

that follow, we agree.

¶ 2 BACKGROUND

¶ 3 In the fall of 2002, following separate jury trials, the defendant was found guilty of one

count of attempted escape (720 ILCS 5/8-4(a), 31-6(a) (West 2002)) and one count of

aggravated battery (720 ILCS 5/12-4(b)(6) (West 2002)). In December 2002, the trial court

sentenced the defendant to two consecutive three-yearterms on the convictions. Because the

underlying offenses were committed while the defendant was in custody on separate felony

charges unrelated to the present case, the court further ordered that the sentences be served

consecutively to the sentences previously imposed on the convictions on the separate

charges. 730 ILCS 5/5-8-4(h) (West 2002). In January 2003, the defendant filed a timely

notice of appeal.

¶ 4 In August 2004, we affirmed the defendant’s convictions on direct appeal, but because

it was “not clear from the record what motivated the trial court to order that the sentences

imposed on [the] defendant’s aggravated batteryand attempted escape convictions be served

consecutively to each other,” we remanded for resentencing. People v. Little, No. 5-03-0028,

order at 2 (2004) (unpublished order under Supreme Court Rule 23). In October 2004,

indicating that it was of the opinion that consecutive sentences were necessary to protect the

public from further criminal conduct by the defendant (730 ILCS 5/5-8-4(b) (West 2002)),

the trial court resentenced the defendant and again imposed consecutive three-year terms of

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imprisonment on his convictions. The court also advised the defendant that he had 30 days

to appeal from the judgment.

¶ 5 In April 2007, the defendant sent a letter to the circuit clerk asking whether his trial

attorney had ever filed a notice of appeal following his resentencing hearing. The defendant

indicated that he had wanted to pursue an appeal, that he had asked his attorney to file a

notice of appeal on his behalf, and that his attorney had agreed to do so. In June 2007, the

defendant sent a letter to the State Appellate Defender also inquiring about the situation. In

response, the State Appellate Defender advised the defendant that because the opportunity

to pursue a direct appeal had “long since passed,” filing a petition pursuant to the PostConviction Hearing Act (the Act) (725 ILCS 5/122-1 to 122-8 (West 2006)) was his “only

recourse.”

¶ 6 In December 2007, claiming that he had been denied the effective assistance of counsel

due to his trial attorney’s failure to file a notice of appeal following his resentencing hearing,

the defendant filed a pro se petition for postconviction relief pursuant to the Act. The

defendant alleged that although he had advised his trial attorney that he had wanted to appeal

from the trial court’s resentencing order, his attorney had failed to file a timely notice, and

as a result, “his time for filing an appeal had expired.” The defendant thus asked that the trial

court grant him leave to file a late notice of appeal.

¶ 7 In January 2008, the trial court summarily dismissed the defendant’s 2007 petition as

untimely filed. The defendant appealed, and citing People v. Boclair, 202 Ill. 2d 89, 99

(2002) (holding that the Act does not authorize the first-stage dismissal of a postconviction

petition on the basis of untimeliness), we reversed. People v. Little, No. 5-08-0061 (2008)

(unpublished order under Supreme Court Rule 23). On remand, in its answer to the

defendant’s petition, the State advised that it had “no objection to the relief requested by the

defendant.”

¶ 8 In November 2008, the trial court granted the defendant’s 2007 petition for

postconviction relief and gave him 30 days to file a notice of appeal from the court’s October

2004 resentencing order. The defendant subsequently filed a timely notice, and on appeal,

he argued that the trial court had abused its discretion when resentencing him “because there

was not a sufficient basis upon which to impose consecutive sentences for the protection of

the public.” In September 2009, noting, inter alia, that the defendant had a lengthy criminal

record dating back to 1986, we rejected the defendant’s claim of error and affirmed the trial

court’s judgment. People v. Little, No. 5-08-0635 (2009) (unpublished order under Supreme

Court Rule 23).

¶ 9 In July 2010, the defendant filed a second pro se postconviction petition pursuant to the

Act. In his second petition, which the trial court aptly described as “somewhat

incomprehensible,” the defendant alleged, inter alia, that he had not received a preliminary

hearing on the charges underlying his convictions; that neither he nor his appellate counsel

had been given a complete and adequate record of the trial proceedings; that appellate

counsel had provided ineffective assistance for proceeding on direct appeal without a

complete and adequate record; that the judge who had presided over his trial proceedings had

done so under a conflict of interest; and that due to “an incorrect application of the

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sentencing guidelines,” the sentences imposed on his convictions were excessive.

¶ 10 In September 2010, the trial court entered a written order disposing of the defendant’s

second pro se postconviction petition. Noting that the defendant had filed a “first petition”

in December 2007, the court construed the second petition as a request for leave to file a

successive petition and held that the defendant had failed to satisfy the requisite cause-andprejudice test. The court also noted that the defendant’s second petition did not allege actual

innocence. The court thus denied what it construed as the defendant’s “request for leave to

file a successive post-conviction petition.” The defendant subsequently filed a timely notice

of appeal.

¶ 11 DISCUSSION

¶ 12 The Act sets forth a procedural mechanism through which a defendant can assert that “in

the proceedings which resulted in his or her conviction there was a substantial denial of his

or her rights under the Constitution of the United States or of the State of Illinois or both.”

725 ILCS 5/122-1(a)(1) (West 2010). The Act provides a three-stage process for the

adjudication of postconviction petitions in noncapital cases. Boclair, 202 Ill. 2d at 99. At the

first stage, the trial court independently assesses a defendant’s petition, and if the court

determines that the petition is “frivolous” or “patently without merit,” the court can

summarily dismissit. 725 ILCS 5/122-2.1(a)(2) (West 2010); People v. Edwards, 197 Ill. 2d

239, 244 (2001). If a postconviction petition is not dismissed at the first stage, it advances

to the second stage, where an indigent defendant can obtain appointed counsel and the State

can move to dismiss his petition. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2010). At the

second stage, the trial court determines whether the defendant has made a substantial

showing of a constitutional violation, and if a substantial showing is made, the defendant’s

petition proceeds to the third stage for an evidentiary hearing; if no substantial showing is

made, the petition is dismissed. Edwards, 197 Ill. 2d at 246.

¶ 13 “The Act is not a substitute for an appeal, but rather, is a collateral attack on a final

judgment.” People v. Edwards, 2012 IL 111711, ¶ 21. “Thus, ‘[t]he judgment of the

reviewing court on a previous appeal is res judicata as to all issues actually decided, and any

claim that could have been presented to the reviewing court in the direct appeal is, if not

presented, thereafter barred under the doctrine of waiver.’ ” People v. Stewart, 121 Ill. 2d 93,

104 (1988) (quoting People v. Silagy, 116 Ill. 2d 357, 365 (1987)).

¶ 14 “TheAct generallylimits a defendant to one post-conviction petition.” People v. Holman,

191 Ill. 2d 204, 210 (2000). “Successive postconviction petitions are disfavored under the

Act[,] and a defendant attempting to institute a successive postconviction proceeding,

through the filing of a second or subsequent postconviction petition, must first obtain leave

of court.” People v. Gillespie, 407 Ill. App. 3d 113, 123 (2010). To obtain leave of court to

file a successive petition, a petitioner must either demonstrate “actual innocence” or satisfy

the cause-and-prejudice test codified in section 122-1(f) of the Act (725 ILCS 5/122-1(f)

(West 2010)). Edwards, 2012 IL 111711, ¶¶ 22-24. “In this respect, section 122-1(f) of the

Act acts as a procedural hurdle to any consideration of the claims in the postconviction

petition.” People v. McDonald, 405 Ill. App. 3d 131, 135 (2010). Moreover, “until such time

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as leave is granted, a successive petition, though received or accepted by the circuit clerk,

will not be considered ‘filed’ for purposes of further proceedings under the Act.” People v.

Tidwell, 236 Ill. 2d 150, 158 (2010). The denial of leave to file a successive postconviction

petition is reviewed de novo (McDonald, 405 Ill. App. 3d at 135), as is the construction of

the Act itself (Tidwell, 236 Ill. 2d at 156).

¶ 15 Relying primarily on federal habeas cases, the defendant argues that “where, as here, a

petitioner files a second petition after a direct appeal that was ordered in response to an

earlier petition, the second petition is not successive” for purposes of the Act. The defendant

contends that the trial court thus erred in treating his second petition as a successive petition

and subjecting it to the cause-and-prejudice test set forth in section 122-1(f).

¶ 16 Underfederal law, “a petitioner incarcerated pursuant to a federal judgment cannot bring

a ‘second or successive’ motion for habeas relief, unless he or she obtains permission from

a court of appeals.” Urinyi v. United States, 607 F.3d 318, 320 (2d Cir. 2010) (per curiam).

The phrase “ ‘second or successive’ ” is not defined by statute (Whab v. United States, 408

F.3d 116, 118 (2d Cir. 2005)), but “[t]he Supreme Court has made clear that not every

numerically second petition is ‘second or successive’ for purposes of [federal habeas

review]” (In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006)). The Supreme Court has further

held that the phrase “second or successive” is a “term of art” (Slack v. McDaniel, 529 U.S.

473, 486 (2000)) whose meaning must be determined in “statutory context” and “with

respect to the judgment challenged” (Magwood v. Patterson, 561 U.S.___, ___, 130 S. Ct.

2788, 2797 (2010)).

¶ 17 In Urinyi, after pleading guilty to federal drug charges, the defendant filed a habeas

petition “arguing that he had been denied effective assistance of counsel because his attorney

had failed to file a timely notice of appeal, despite [the defendant’s] explicit instruction that

the attorney do so.” Urinyi, 607 F.3d at 319. Following an evidentiary hearing, the trial court

granted the defendant’s petition and allowed him to file a late notice of appeal. Id. After the

defendant pursued a direct appeal, he filed a second habeas petition in which he attacked his

conviction and sentence. Id. at 320. Finding that the petition was a “ ‘second or successive’ ”

petition, the trial court determined that the defendant had to obtain leave from the court of

appeals before filing it. Id.The court of appeals disagreed, however, noting that under federal

law, every prisoner is afforded one full opportunity to seek collateral review of a judgment.

Id. The court thus held that because the defendant’s first petition “sought only reinstatement

of [the] right to a direct appeal,” his second petition was actually his first opportunity to seek

collateral review and was therefore not a “ ‘second or successive’ ” petition. Id. at 321. The

court of appeals further noted that a majority of the federal circuits had similarly held that

a defendant who is forced to use a habeas petition to reinstate his right to a direct appeal

should not be denied the opportunity to lodge a collateral attack, but should rather be

“restored to the procedural posture he would have enjoyed if he had been represented by

effective counsel who had timely filed a notice of appeal.” Id.; see also Storey v. Vasbinder,

657 F.3d 372, 378 (6th Cir. 2011) (joining the “majority of circuits” holding that a habeas

petition “filed after a remedial appeal, ordered in response to an earlier petition, is not second

or successive”).

¶ 18 Our supreme court has noted that it “has in the past relied on habeas case law in

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interpreting and applying the Act” and that such reliance is particularly appropriate when

evaluating provisions patterned after federal law. People v. Hodges, 234 Ill. 2d 1, 12 (2009).

With respect to the legislative history of section 122-1(f), the court has further noted:

“In discussing the first sentence of subsection (f), which provides that ‘[o]nly one

petition may be filed by a petitioner under this Article without leave of the court,’

Senator Dillard stated: ‘This would make Illinois law consistent with federal law by

letting a prisoner have one post-conviction petition without court permission while

requiring that he or she formally seek leave of the court to file additional petitions.’ ”

(Emphasis in original.) Edwards, 2012 IL 111711, ¶ 28.

¶ 19 With this deference in mind, we adopt for purposes of the Act the reasoning set forth in

Urinyi and employed by a majority of the federal circuits. We find the reasoning wellfounded and thus hold that where a defendant files an initial postconviction petition seeking

only to reinstate the right to a direct appeal that was lost due to counsel’s ineffectiveness, a

subsequent petition is not a successive petition for purposes of section 122-1(f). Federal law

aside, we believe that this holding is also consistent with Illinois Supreme Court precedent

regarding the Act and the right to a direct appeal.

¶ 20 “A criminal defendant has no federal constitutional right to a direct appeal, but under the

Illinois Constitution the right to appeal a criminal conviction is fundamental.” People v.

Ross, 229 Ill. 2d 255, 268 (2008); see also People v. Wright, 311 Ill. App. 3d 1042, 1046

(2000) (noting that “[i]n Illinois[,] there is a constitutional and statutory right to appeal a

criminal conviction”). “A defendant whose attorney never filed a notice of appeal is entitled

to that appeal, not its functional equivalent.” Ross, 229 Ill. 2d at 269. Our supreme court has

accordingly held that the Act “is flexible enough to include leave to file a late notice of

appeal among the remedies available to a trial court in a postconviction proceeding” and that

“when a postconviction petitioner demonstrates that defense counsel was ineffective for

failing to file a notice of appeal, the trial court may allow the petitioner leave to file a late

notice of appeal.” Id. at 271. Referencing instances where “successive” postconviction

petitions have been allowed when the proceedings on the original petitions were “virtual

nullities,” our supreme court has further held that the Act affords everyimprisoned defendant

“ ‘one complete opportunity to show a substantial denial of his constitutional rights.’ ”

People v. Free, 122 Ill. 2d 367, 376-77 (1988) (quoting People v. Logan, 72 Ill. 2d 358, 370

(1978)).

¶ 21 With these principles in mind, we conclude that in statutory context, section 122-1(f)’s

reference to “one petition *** without leave of the court” (725 ILCS 5/122-1(f)(West 2010))

refers to one complete opportunity to collaterally attack “the proceedings which resulted in

his or her conviction” (725 ILCS 5/122-1(a)(1) (West 2010)). As previously indicated, we

furtherfind that where, as here, a defendant has been denied that opportunity because he used

an initial petition solely to reinstate his right to a direct appeal that was forfeited through no

fault of his own, he should be “restored to the procedural posture he would have enjoyed if

he had been represented by effective counsel who had timely filed a notice of appeal.”

Urinyi, 607 F.3d at 321. In other words, because the defendant’s “first petition was filed only

to rescue his right of appeal,” it was not a “true collateral attack” and should not be counted

as such. Johnson v. United States, 362 F.3d 636, 638 (9th Cir. 2004). The defendant was

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therefore not required to obtain leave of court before his second petition was considered

filed, nor was he required to either demonstrate actual innocence or satisfy section 122-1(f)’s

cause-and-prejudice test. We thus vacate the trial court’s judgment construing the

defendant’s 2010 petition as a request for leave to file a successive petition and denying him

leave to file it.

¶ 22 Citing our decision in People v. Inman, 407 Ill. App. 3d 1156 (2011), the defendant next

argues that on remand, his petition must be docketed for second-stage postconviction

proceedings because the trial court failed to determine within 90 days whether the petition

was frivolous or patently without merit. We agree.

¶ 23 Undersection 122-2.1 of the Act, “a court is required to review a petition within 90 days

to determine whether it is frivolous and patently without merit” or else “the court must

docket the petition for further proceedings.” (Emphasis in original.) Inman, 407 Ill. App. 3d

at 1162. This rule applies even if by honest mistake the trial court disposes of a

postconviction petition on the erroneous belief that the petition was a successive petition

brought without leave of court. Id. at 1163; People v. Carter, 383 Ill. App. 3d 795, 797-98

(2008).

¶ 24 “Here, the court did not determine the petition to be frivolous or patently without merit

within 90 days, because it concluded that the petition was successive.” Inman, 407 Ill. App.

3d at 1163. “We therefore conclude that, on remand, the petition must be docketed for

second-stage proceedings” (id.), and we accordingly reject the State’s suggestion that we

“examine the record ourselves to determine whether[the] defendant’s postconviction petition

was frivolous or patently without merit” (Carter, 383 Ill. App. 3d at 798).

¶ 25 We lastly observe that although an attorney’s failure to file a notice of appeal does not

always constitute ineffective assistance of counsel (People v. Torres, 228 Ill. 2d 382, 401-04

(2008)), situations such as that presented here could be avoided if, as is often the case, the

trial court orders the clerk of the court to file a notice of appeal on the defendant’s behalf

(see, e.g., id. at 392; People v. Barnett, 2011 IL App (3d) 090721, ¶ 20). Whether to appeal

is one of the few decisions that ultimately belongs to a criminal defendant (People v.

Clendenin, 238 Ill. 2d 302, 318 (2010)), and once a timely notice of appeal has been filed for

a defendant, he or she can subsequently decide whetherto actually pursue the appeal or allow

it to be dismissed for want of prosecution.

¶ 26 CONCLUSION

¶ 27 For the foregoing reasons, we vacate the trial court’s judgment and remand the

defendant’s petition for second-stage proceedings under sections 122-4 through 122-6 of the

Act (725 ILCS 5/122-4 to 122-6 (West 2010)).

¶ 28 Judgment vacated; cause remanded.

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