## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. KELVI N L I TTL E, Def

endant- Appellant.

District & N o. Fifth District Docke t No. 5-10-0547

Filed October 9, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant lost his right to a direc t appea l through no fault of his own and he used his orig inal postconviction petitio n to reinstate his right to a direc t a ppeal a nd, there fore , his subsequent postconviction petition was
not a succe ssive petition without leave of the trial court, and the denial of the petition on that g round was reve rsed and the cause was rema nded for second- stag e proc eeding s.

Dec ision Under Review Appea l from the Circuit Court of Randolph County
, No. 02-CF- 160; the Hon. B rian B abka, Judge , presiding

.

J udg ment J udgment vacated; cause rema nded.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Debor ah K. Pugh, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Ra n d all Rodewald, State’s Attorney
, of Chester (Patrick Delf in o , St ep h e n E. Norris, an d Kelly M. Stacey
, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE WEXSTTEN delivere d the judgme nt of the court, with opinion.
J ustices Spomer and Stewa rt conc urre d in the judgme nt and opinion.

OP INION

¶ 1 In September 2010, the trial court enter ed a written order denying the defe ndant, Kelvin L ittle, leave to file a pro se petition for postconviction relief

. Contending that the trial court wrong ly construed his petition as a “ s u c c e s s ive ” petition, the defe ndant arg ues that we should

vacate t he court’s judgme nt and remand his cause for further procee dings. For the rea sons that follow, we a gree

.

¶ 2 BA CKGROUND ¶ 3 In the fall of 2002, following separ ate jury trials, the defe ndant was found guilty of one count of attempted esca

pe (720 I L C S 5 / 8 -4(a ), 31-6(a ) (West 2002)) and one count of
ag g ravated battery (720 I L CS 5/12-4(b)( 6) (West 2002)). In Dec ember 2002, the trial court sentenc ed the defe ndant to two consec utive three -year terms on the convictions. Be cause the underlying offe nses wer e committed while the defe ndant was in custody on separ ate felony charg es unrelated to the prese nt c ase, the court further order ed that the sentenc es be serve d

consec utively to the sentenc es previously imposed on the conv i ct i o n s on the separ ate charg es. 730 I L CS 5/5-8-4(h) (West 2002). In J anuar y 2003, the defe ndant fil ed a timely notice of a

ppeal. ¶ 4 In August 2004, we af firmed the defe ndant’s convictions on direc t a ppeal, but beca

use it was “not clea

r from the record what motivated the t ri al co u rt to order that the s entenc es imposed on [t he] defe ndant’s ag g ravated battery and attempted esca pe convictions be serve d

consec utively to eac h other,” we rema nded for rese ntencing

. People v. Litt le
, No. 5-03-0028, order at 2 (2004) (unpublished order under Supreme Court Rul e 2 3 ). In October 2004, indicating that it was of the opinion that consec utive sentenc es wer e nece ssary to protec t the public from further criminal conduct by the defe ndant (730 I L CS 5/5-8-4(b) (West 2002) ), the trial court rese ntence d the defe ndant and ag ain imposed consec utive three -year terms of

-2-imprisonment on his c onvictions. The court also advised the defe ndant that he had 30 day s

to appea l from the judg ment. ¶ 5 In April 2007, the defe ndant sent a lett er t o t he circ uit cler k asking whether his trial attorney had ever filed a notice of appea l following his rese ntencing hearing. The defe ndant indicated that he had wa n t ed t o p ursue an appea l, that he had asked his attorney to file a

n o t i ce of appeal on his behalf
, and that his attorney had agr eed to do so. In June 2007, the defe ndant sent a letter to the State Appellate Def ender also inquiring about the situation. In response , the State Appellate Def ender advised the de fenda

nt that beca

use the opportunity
to pursue a direc t appea l had “long since p as s ed
, ” filing a petition pursuant to the PostConviction HearingAct (the Act) ( 725 I L CS 5/122-1 to 122- 8 (West 2006)) wa s his “only

rec ourse.” ¶ 6 In Dec ember 2007, claiming that he had been denied the eff ective assistance of counse l due to his trial attorney ’s failure to file a notice of appea l following his rese ntencing hearing, the defendant filed a pro se petition for postconviction relief pursuant to the Act. The defe ndant alleg ed that althoug h he had advised his trial attorney that he had wanted to appea l from the tria l court’s re sentenc ing or der, his attorne y had fa iled to file a timely notice, and

as a result, “his time for filing an appea l had expired.” The defe ndant thus asked that the trial court grant him leave to file a late notice of a ppeal. ¶ 7 In J anuar

y 2008, the trial court summarily dismi s s ed t h e defe ndant’s 2007 petition as untimely filed. The defe ndant appeal ed
, and citing People v. Boclair
, 202 I ll. 2d 89, 99 (2002) (holding that the Act does not authorize the first-stag e dismiss al of a postconviction petition on the basis of unt imeliness), we r ever sed. People v. Litt le
, No. 5-08-0061 (2008) (unpublished order un d er S up re m e Court Rule 23). On rema nd, in its answe r to the defe ndant’s petition, the State advised that it had “no objection to the relief reque sted by the defe ndant.” ¶ 8 In Nove m b er 2 0 0 8
, t h e tri al co u rt gra n t ed t h e d efendant’s 2007 petition for postconviction relief and g ave him 30 day s to file a notice of appea l from the court’s October 2004 rese ntencing order

. The defenda nt subsequently filed a timely no t i ce , and on appea l, he argued that the trial court had abused its discretion when rese ntencing him “bec ause there

was not a sufficie nt basis upon which to impose consec utive sentenc es for the protec tion of the public.” In September 2009, noting, inter alia
, that the defe ndant had a leng thy criminal

rec ord dating back to 1986, we reje cted the defe ndant’s claim of err or and aff irmed the trial court’s judgme nt. People v. Litt le
, No. 5-08-0635 (2009) (unpublished order under Supreme Court Rule 23). ¶ 9 In J uly 2010, the defe ndant filed a second pro se postconviction petition pursuant to the Act. In his second petition, which the trial court aptly described as “somew hat incomprehe nsible,” the defe ndant alleg ed, inter alia
, that he had not rec eived a preliminary hearing on the charg es underlying his c onvictions; that neither he nor his appellate counsel had b ee n g iven a complete and adequate rec ord of the trial proce eding s; that appellate counsel had provided inef fective assistance for proce eding on direc t appea l without a complete and adequa

te rec ord; that the judge who had presided over his trial proce eding s had done so under a conflict of interest; and that due to “an incorre ct application of the

-3-sentenc ing guidelines,” the se ntence s imposed on his convictions were excessive.

¶ 10 In September 2010, the t rial co u rt enter ed a written order di sposing of the def endant’ s second pro se postconviction petition. Noting that the defe ndant had filed a “first petition” in Dec ember 2007, the court construed the second petition as a reque st for leave t o fi l e a

succe ssive petition and held that the defe ndant had failed to satisfy the requisite cause -andprejudice test. The court also noted that the defe ndant’s second petition did not alleg e actua l innocenc e. The court thus de nied what it c onstrued as the defe ndant’s “re quest for leave to file a succe ssive post-conviction petition.” The defe ndant subsequently filed a timely notice of appe al.

¶ 11 DI SCUS SI ON ¶ 12 The Act sets forth a proce dural mecha nism through which a defe ndant can asser t that “in the proce eding s 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 I llinois or both.” 725 I L CS 5/122-1(a) (1) (West 2010). The Act provides a three -s t ag e proce ss for the adjudication of postconviction petitions in noncapital case s. Boclair
, 202 I ll. 2d at 99. At the first stag e, the trial court independe ntly assesses a defe ndant’s petition, and i f t h e court d et ermines that the petition is “frivolous” or “pate ntly without merit,” the court ca n summarily dismiss it. 725 I L CS 5/122-2.1(a) (2) (West 2010); People v. Edwards
, 197 I ll. 2d 239, 244 (2001). I f a postconviction petition is not dismiss ed at the first stag e, it advanc es to the second stag e, wher e an indige nt defe ndant can obtain appointed counsel and the State

can move to dismiss his petition. 725 I L CS 5/122-2.1(b), 122-4, 122-5 (West 2010). At the second stag e, the trial court determ i n es whether the defe ndant has made a substantial showing of a constitutional violation, and if a substantial showing is made, the defe ndant’s petition proce eds t o the t hird stag e for an evidentiary h ea ri n g; if no substantial showing is made, the pe tition i s dismis sed. Edwards , 197 I ll. 2d at 246. ¶ 13 “The Act is not a substitut e for an appea l, but rathe r, is a collateral at t ac k o n a fi n al judgme nt.” People v. Edwards
, 2012 I L 1 1 1 7 1 1
, ¶ 21. “Thus, ‘[t] he judgme nt of the revie wing court on a previous appea l is resjudicata as to all issues actua lly decide d, and any claim that could have been prese nted t o t h e re v i ew ing court in the direc t appea l is, if not prese nted, there afte r barr ed under the doctrine of waiver .’ ” People v. Stewart
, 121 I ll. 2d 93, 104 (1988) ( quoting People v . Silagy , 116 I ll. 2d 357, 365 (1987)). ¶ 14 “ T h e A c t g e n e rally limit s a defe ndant to one post-conviction petition.” People v. H o lm a n , 191 I ll. 2d 204, 210 (2000). “Successive postconvi ct ion petitions are disfavore d under the Act[,] and a defe ndant attempting to institute a succe ssive postconvicti o n proce eding
, through the filing of a second or subsequent postconviction petition, must first obtain leave of court.” People v. Gillespie
, 407 I ll. App. 3d 113, 123 (2010). To obtain leave of court to file a succe ssive petition, a petitioner must either demonstrate “ac tual innocenc e” or satisfy the cause -and- prejudice test codified in section 122-1(f ) of the Act (725 I L CS 5 /122-1(f) (West 2010)). Edwards
, 2012 I L 111711, ¶¶ 22-24. “I n this respe ct, section 122-1(f ) of the Act acts as a proce dural hurdle t o any consideration of the claims in the postconviction petition.” People v. McD onald
, 405 I ll. App. 3d 131, 135 (2010). Moreove r, “until such time

-4-as leave is g rante d, a succe ssive petition, though rec eived or acc epted by the circ uit cler k, will not be considere d ‘filed’ for purposes of further proce eding s under the Act.” People v. Tidw ell
, 236 I ll. 2d 150, 158 (2010). The denial of leave to file a succe ssive postconviction petition is reviewed de novo ( McD onald , 405 I ll. App. 3d at 135), as is the construc tion of the Act itself ( Tidw ell , 236 I ll. 2d at 156). ¶ 15 Relying primarily on fede ral habeas case s, the def endant a rgues that “whe re, as here
, a petitioner files a second petition afte r a direc t ap peal that was order ed in response to an

earlier petition, the second petition is not succe ssive” for purposes of the Act. The defe ndant contends that the trial court thus err ed in treating his second petition as a succe ssive petition and subjec ting it to the ca use-a nd-pre judice test set for

th in section 122-1(f)

. ¶ 16 Under fede ral law, “a petitioner incar cer ated pursuant to a fede ral judgme nt cannot br ing

a ‘sec ond or succe ssive’ motion for habea s relief
, unless he or she obtains permission from

a court of appea ls.” Urinyi v. United States
, 607 F.3d 318, 320 (2d Cir. 2010) ( per curiam ). The phrase “ ‘sec ond or succe ssive’ ” is not define d by statute ( W hab v. United States
, 408 F.3d 116, 118 (2d Cir. 2005)), but “[t] he Supreme Court has made cl ea r t h at not ever y numerica lly s ec o n d p etition is ‘sec ond or succe ssive’ for purposes of [federa l habeas revie w]” (

In re Bowen
, 436 F.3d 699, 704 (6th Cir. 2006)). The Supreme Court ha s further held that the phrase “sec ond or succe ssive” is a “ter m of art” ( Slack v . McD aniel , 529 U.S. 4 7 3
, 486 (2000)) whose meaning must be deter mined in “statutory context” and “w i t h
respe ct to the judg ment challeng ed” ( Magwood v. Patterson , 561 U.S.___, ___, 130 S. Ct. 2788, 2797 (2010))

. ¶ 17 In Urinyi
, afte r p l ea d i n g gu i l t y to fede ral drug charg es, the defe ndant filed a habeas petition “arguing that he had been denied eff ective assistance of counsel beca use his attorney had failed to file a timely notice of appea l, despite [t he defe ndant’s] expli cit instruction that the attorney do so.” Urinyi
, 607 F.3d at 319. Following an evidentiar y hearing, the trial court g rante d the defe ndant’s petition and allowed him to file a late notice of appea l. Id. After the defe ndant pursued a direc t appea l, he filed a second habeas petition in which he attacke d his conviction and sentenc e. Id. at 320. Finding that the petition was a “ ‘sec ond or succe ssive’ ” petition, the trial court determined t hat t he defenda nt had to obt ain leave from the c ourt of
appea ls befor e filing it. Id. The court of appea ls disagree d, howeve r, noting that under fede ral law, ever y prisoner is aff

orded one full opportunity to seek collater al revie w of a judgme nt. Id. The court thus held that beca use the defe ndant’s first petition “sought only reinstateme nt of [the] right to a direc t appea l,” his second petition was actua lly his first opportunity to seek collater al revie w and was there fore not a “ ‘sec ond or succe ssive’ ” petition. Id. at 321. The court of appea ls further noted t hat a m aj o rity of t he federa l circ uits had si milarly held t hat

a defe ndant who is forc ed to use a habeas petition to reinstate his right to a direc t appeal should not be denied the opportunity to lodge a collater al attack, but should rathe r be “re stored to the proce dural p o s tu re he would have enjoyed if he had been repr esente d by eff ective counsel who had timely filed a notice of appea l.” Id. ; see also Storey v. Vasbinder
, 657 F.3d 372, 378 ( 6th Cir. 2011) (joining the “ majority of circ uits” holding that a habeas petition “filed afte r a reme dial appea l, order ed in response to an earlier petition, is not second

or succ essive”)

. ¶ 18 Our supreme court has noted th at i t “h as i n t h e p as t relied on habeas case law in

-5-interpre ting and applying the Act” and that such relianc e is particularly appropriate when

evaluating provisions patterne d afte r fede ral law. People v. Hodges
, 234 I ll. 2d 1, 12 (2009). Wit h respe ct to the leg islative history of sec tion 122-1(f), the court ha s further noted:
“In discussing the first sentenc e of subsection (f)
, which provides that ‘[o ] n l y one petition may be filed by a peti t i o n er under this Article without leave of the court,’ Senator Di l l ar d stated: ‘This would make I llinois law consistent with federal law by letting a prisoner have one post-conviction petition without court per mission while requiring that he or she formally seek leave of the court to file addition al p et i t ions.’ ” (Emphasis in orig inal.) Edwards , 2012 I L 111711, ¶ 28. ¶ 19 Wit h this defe renc e in mind, we adopt for purposes of the Act the rea soning set forth in Urinyi and employed by a majority of the fede ral circ uits. We find the re as o n i ng wellfounded and thus hold that wher e a defe ndant files an initial postconviction petition seeking only to reinstate the right to a direc t appea l that was lost due to c ounsel’s ineffe ctiveness, a subsequent petition is not a succe ssive petition for purposes of section 122-1(f ). Fe dera l law aside, we believe that this holding is also consistent with I llinois Supreme Court pr ece dent
reg ardingthe Act a

nd the right to a direc t appea l. ¶ 20 “A criminal defe ndant has no fede ral constitutional right to a direc t appea l, but under the I llinois Constitution the right to appea l a criminal conviction is funda m en t al

. ” People v. Ross
, 229 I ll. 2d 255, 268 (2008); see also People v. W r i gh t , 311 I ll. App. 3d 1042, 1046 (2000) (noti n g t h at “[i] n I llinois [,] there is a constitutional and statutory right to appea l a criminal conviction”)

. “A defe ndant whose attorney never filed a notice of appea l is entitled
to that appea l, not its functional equivalent.” Ross
, 229 I ll. 2d at 269. Our supreme court has

acc ording ly held that the Act “is flexibl e enough to include leave to file a l at e n o t i ce of
appea l among the reme dies available to a trial court in a postconviction proce eding ” and that “whe n a postconviction petitioner demonstrates that defe nse counsel was ineffe ctive for failing to file a notice of appea l, the t rial court may al l o w t h e p etitioner l eave to file a late
not i ce o f appea l.” Id. at 271. Refer encing instances wher e “succ essive” postconviction petitions h av e b ee n allowed when the proce eding s on the orig inal petitions wer e “virtual nulliti es,” our supreme court has further held that the Act aff ords ever y imprisoned defe ndant “ ‘one complete opportunity to show a substantial denial of his constitutional rights.’ ” People v. Free
, 122 I ll. 2d 367, 376-77 (1988) (quoting People v. Logan
, 72 I ll. 2d 358, 370 (1978))

. ¶ 21 Wit h these principles in mind, we conclude that in statutory context, sec tion 122-1(f)’ s ref ere nce to “one petition *** without leave of the court” (725 I L CS 5/122-1(f) (West 2010)) ref ers to one complete opportunity to collater ally attack “the proce eding s which resulted in his or her conviction” (725 I L CS 5/ 122-1(a )(1) (West 2010)). As pre viously indicated, we further find that wher e, as here
, a defe ndant has been denied that opportunity beca use he used

an initial petition solely to reinstate his right to a direc t appea l that was forf eited through no fault of his own, he should be “re stored to the proce dural posture he would have enjoyed if he had been re p re s en t ed by eff ective counsel who had timely filed a notice of appea l.” Urinyi
, 607 F.3d at 321. In other words, beca use the defe ndant’s “first petition was filed only
to resc ue his right of appea l,” it was not a “true collater al attack” and should not be counted

as such. Johnson v. United States
, 3 6 2 F.3d 636, 638 (9th Cir. 2004). The defe ndant was

-6-t h er efor e not require d to obtain leave of court befor e his second petition was cons i d er ed

filed, nor was he require d to either demonstrate actua l innocenc e or satisfy section 122-1(f )’s

cause -and- prejudice test. W e t hus vacate the trial court’s judgme nt construing the defe ndant’s 2010 petition as a reque st for leave to file a succe ssive petition and denying him leave to file it. ¶ 22 Citi ng our decision in People v. Inman
, 407 I ll. App. 3d 1156 (2011), the defe ndant next
argues that on rema

nd, his petition must be dockete d for s ec ond-stag e postconviction
proce eding s beca

use the trial c ourt failed to de termine within 90 day s whether the petit ion was frivolous or patently

without merit. W e agree

. ¶ 23 Under section 122-2.1 of the Act, “a court is require d to revie w a petition within 90 day s to dete rm i n e whether it is frivolous and patently without merit” or else “the court must docket the petition for further proce eding s.” (Emphasis in orig inal.) Inman
, 407 I ll. App. 3d
at 1162. This rule appli es even if by honest mistake the trial court disposes of a p o stconviction petition on the err oneous belief that the petition was a succe ssive p et i t i o n brought without leave of c ourt. Id. at 1163; People v . Carter , 383 I ll. App. 3d 795, 797-98 (2008). ¶ 24 “He re, the court did not deter mine the petition to be frivolous or patently without merit within 90 day s, beca

use it conclude d that the petition was succe ssive.” Inman
, 407 I ll. App. 3d at 1163. “We there fore conclude that, on rema n d
, t he petition must be dockete d for second- stag e proce eding s” ( id. ), and we acc ording ly reje ct the State’s sug g estio n that we

“ e xa mi n e th e r e cord ourselves to deter mine whether [t he] defe ndant’s p o s tc o nv ic ti o n p e ti ti o n was frivolous or patently

without merit” ( Carter , 383 I ll. App. 3d at 798). ¶ 25 We lastly observe that althoug h an attorne y ’s fa ilure to file a notice of appea l does not alway s constitute ineffe ctive assistance of counsel ( People v. Torres
, 228 I ll. 2d 382, 401-04 (2008))
, situations such as that pr esente d here could be avoided i f, as is often the case , the trial court order s the cler

k of the court to file a notice of appea l on the defe ndant’s behalf (see
, e.g. , id. at 392; People v. Barnett
, 2011 I L App (3d) 090721, ¶ 20). Whether to appea l is one of the few decisions that ultimately belong s to a cri m i n al d ef en dant ( People v. Clendenin
, 238 I ll. 2d 302, 318 (2010))
, and once a timely notice of appea l has been filed for

a defe ndant, he or she can subsequently decide whether to actua lly pursue the appea l or allow it to be dismi ssed for w ant of prose cution.

¶ 26 CONCLUSI ON ¶ 27 Fo r t h e fo re going rea sons, we vacate the trial court’s judgm en t an d re m an d t h e defe ndant’s petition for second- stag e proce eding s under sections 122-4 through 122-6 of the Act (725 I L CS 5/ 122-4 to 122-6 (West 2010)).

¶ 28 J udgment vacated; causerema nded.

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