1 

2023 IL App (5th) 210094-U 

NO. 5-21-0094 

IN THE 

APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 

________________________________________________________________________ 

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

 ) Circuit Court of 

 Plaintiff-Appellee, ) Madison County. 

 ) 

v. ) No. 03-CF-1363 

 ) 

JAMES MILLER, ) Honorable 

 ) Ronald R. Slemer, 

 Defendant-Appellant. ) Judge, presiding. 

________________________________________________________________________ 

 JUSTICE WELCH delivered the judgment of the court. 

 Justices Cates and Moore concurred in the judgment. 

 

 ORDER 

¶ 1 Held: The trial court erred in denying the defendant’s postconviction petition 

where it appeared that the court was operating as if the postconviction 

 petition had advanced to a third-stage evidentiary hearing, but the defendant 

was not given a proper evidentiary hearing. Therefore, we reverse the 

 court’s order and remand for a proper third-stage evidentiary hearing. 

¶ 2 On March 18, 2021, the circuit court of Madison County denied the defendant, 

James Miller’s, postconviction petition filed under the Post-Conviction Hearing Act (Act) 

(725 ILCS 5/122-1 et seq. (West 2020)), finding that the defendant had failed to make a 

substantial showing that his constitutional rights were violated. The defendant appeals, 

arguing that the court’s order should be reversed and this case remanded for a third-stage 

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 10/02/23. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Peti ion for 

Rehearing or the disposition of 

the same.
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evidentiary hearing where the trial court failed to conduct a timely, proper third-stage 

evidentiary hearing and where he was not provided with reasonable assistance of 

postconviction counsel. For the reasons that follow, we reverse and remand for a thirdstage evidentiary hearing.

¶ 3 I. BACKGROUND 

¶ 4 The facts necessary to our disposition of this appeal follow. At a July 2007 jury 

trial, the defendant was convicted of two counts of murder and one count of armed 

robbery. The convictions stemmed from an incident in a parking lot adjacent to the Time 

Out Lounge in Alton, Illinois, where two people were shot and killed. Subsequently, the 

defendant was sentenced to natural life in prison. In his direct appeal from his 

convictions, he argued that his trial counsel was ineffective because counsel failed to 

present the testimony of several critical witnesses, did not move for a continuance to 

secure the witnesses, and failed to impeach two State witnesses with their prior 

inconsistent statements. This court affirmed his convictions. People v. Miller, 2011 IL 

App (5th) 090156-U. 

¶ 5 On June 19, 2012, the defendant filed a pro se petition for postconviction relief, 

alleging actual innocence based on newly discovered eyewitness testimony. Also, the 

pro se petition alleged that the defendant was denied his right to effective assistance of 

appellate counsel for counsel’s failure to raise and properly litigate his claims that his 

trial counsel was ineffective for failing to present the testimony of several critical 

witnesses. Attached to the petition was an affidavit from Michael Green, in which Green 

indicated that he witnessed the shooting and observed that the shooter was a “tall, darked 
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[sic] skin guy with braids”; a description that did not match the defendant. Green 

indicated that he never gave a statement to the police and was never questioned about the 

incident. However, while incarcerated in Menard Correctional Center, he overheard the 

defendant talking to the law clerk about the shootings and realized that the defendant had 

been convicted of the murders. Green then approached the defendant and told the 

defendant that he witnessed the shootings, and the defendant was not the man that he saw 

that night. In his affidavit, he indicated that the defendant was not the shooter, and he 

was never called to testify on the defendant’s behalf because the affidavit was the first 

time that he came forward with the information. 

¶ 6 On July 6, 2012, the trial court appointed postconviction counsel to represent the 

defendant in the postconviction proceedings. After delays with the defendant’s appointed 

counsel having conflicts of interest, new counsel was appointed to represent him on June 

11, 2013. 

¶ 7 On August 20, 2013, the State filed a motion to dismiss the defendant’s 

postconviction petition, arguing that the defendant’s actual innocence claim made no 

allegation as to a violation of his constitutional rights, the evidence at trial 

overwhelmingly supported his conviction, the alleged newly discovered evidence was 

known at the time of his direct appeal, his ineffective assistance of appellate counsel 

claims should be dismissed based on res judicata, and the ineffective assistance claims 

were frivolous and patently without merit. Thus, the State contended that the defendant 

did not suffer a substantial denial of his constitutional rights. 
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¶ 8 In response, on September 3, 2013, the defendant’s appointed counsel filed an 

answer to the motion to dismiss, arguing that the newly discovered evidence was not 

known to the defendant at the time of his direct appeal. The answer also noted that one 

of the known witnesses at the time of trial could not be located at that time but was 

subsequently found, and another witness was not called to testify at trial. On December 

16, 2013, counsel filed a certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. 

Feb. 6, 2013). On February 6, 2014, the trial court denied the State’s motion to dismiss, 

allowing the postconviction petition to proceed to a third-stage evidentiary hearing. In 

the order, the court explained that it was using an abundance of caution and granting 

every benefit of consideration to the defendant’s allegations. Although the case was set 

for a hearing, it was subsequently continued so that the defendant’s attorney could 

subpoena witnesses for the evidentiary hearing. 

¶ 9 On August 6, 2014, the case was reassigned to a new judge as the current judge 

had resigned. On October 21, 2014, the trial court granted the State leave to file an 

amended motion to dismiss within 28 days. On November 7, 2014, the defendant filed a 

pro se objection to the State being allowed to amend its motion to dismiss eight months 

after the initial motion to dismiss was denied. On February 19, 2015, the court granted 

the defendant’s attorney’s request for leave to withdraw due to an unexpected death in

her immediate family and appointed new counsel to represent the defendant in the 

postconviction proceedings. On April 1, 2015, the defendant filed a pro se motion for 

default judgment because it had been more than 28 days since the court granted the State 

leave to file an amended motion to dismiss, and the State had neither requested additional 
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time to file its amended motion nor filed an amended motion. The defendant also filed a 

pro se motion to substitute judge, which he later withdrew. 

¶ 10 After the defendant had a few attorneys withdraw due to conflicts of interests, new 

counsel was appointed to represent him on March 24, 2016. On September 26, 2016, the 

defendant’s new counsel filed a Rule 651(c) certificate, which indicated that, after 

consulting with the defendant, the attorney would not be making any deletions from the 

defendant’s previously filed pro se motions but would be filing additional motions. 

Thereafter, on October 17, 2016, counsel filed a motion to dismiss the State’s request to 

file an amended motion to dismiss and a motion to proceed with the third-stage 

evidentiary hearing on the defendant’s postconviction petition. In the motion, the 

defendant alleged that he had suffered prejudice as a result of the State’s failure to file a 

timely amended motion to dismiss as his counsel had been unable to take the necessary 

procedural steps to locate and interview his witnesses. 

¶ 11 On January 26, 2017, more than two years after the trial court’s deadline, the State 

filed its amended motion to dismiss the defendant’s postconviction petition. In the 

amended motion, the State argued, as in the original motion, that the defendant’s claims 

of ineffective assistance of trial and appellate counsel were barred by res judicata. The 

State also contended that trial counsel’s decision not to call certain witnesses at trial was 

a matter of trial strategy and would not support an ineffective assistance of counsel claim. 

The State further argued that the defendant’s claim of actual innocence based on newly 

discovered eyewitness testimony was unsubstantiated, lacked credibility, was positively 

rebutted by the evidence presented at the defendant’s trial, and would not change the 
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result on retrial. As for the defendant’s request that the State’s amended motion to

dismiss be dismissed as untimely, the State argued that nearly all of the delays in this 

matter were the result of the defendant’s constant hiring and firing of new attorneys and 

judge shopping. 

¶ 12 At the July 18, 2017, hearing on the State’s amended motion to dismiss, the 

defendant argued that the State’s amended motion to dismiss was untimely; that the State 

incorrectly argued that he was responsible for the delay as the record was clear that the 

assigned judges had to recuse themselves because they had previously participated in the 

defendant’s prosecution, and his various appointed attorneys had to withdraw due to 

conflicts of interests; and that he suffered prejudice from the delay as he was losing the 

ability to locate witnesses. In response, the State argued that the defendant had amended 

his postconviction petition up until October 20161 and that the State’s response was not 

“quite as untimely” as it was portrayed. The court then took the matter under 

advisement. 

¶ 13 On October 19, 2017, the trial court entered an order, in which it stated that it 

wanted additional argument and information concerning Green and his affidavit. On 

August 30, 2018, the court held a hearing, but the defendant’s counsel expressed 

confusion about the court’s October 19 order. Counsel indicated that, if the court’s ruling 

was to advance the postconviction petition to a third-stage evidentiary hearing, the 

defendant had previously requested that an investigator be appointed to serve subpoenas 

1

From a review of the record, it does not appear that the defendant ever amended his 

postconviction petition. 
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on his various witnesses. In response, the State indicated the proceedings were at the 

second stage, and the hearing was for the defendant to present additional testimony 

regarding Green. When the court questioned the defendant’s counsel as to whether he 

had a list of witnesses, counsel replied that he did not have a formal list prepared because 

he was waiting until the petition advanced to a third-stage evidentiary hearing. He 

indicated that he mailed a letter to Green on July 8, 2018, about testifying, but Green 

never responded. However, he spoke to Green before the hearing, and Green advised that 

he was represented by appellate counsel. The court then responded, “Well, let’s get it 

from *** Green’s mouth,” and instructed that Green be brought in. 

¶ 14 During questioning, Green indicated that his case was currently on appeal, and he 

was not willing to testify in the defendant’s case without first discussing it with his 

appellate counsel. In response, the defendant’s counsel requested a continuance to allow 

Green time to consult with his attorney. Counsel then indicated that the defendant 

wanted clarity on whether his postconviction petition was advancing to the third stage, so 

that they could request the appointment of a special investigator to subpoena his 

witnesses. The State argued that the defendant’s actual innocence claim was based on 

Green’s eyewitness testimony that the defendant was not the shooter, Green made no 

such affirmations on the stand, and there was no evidence that Green would substantiate 

the defendant’s postconviction claims. The State also argued that, based on Green’s 

previous first degree murder conviction and his failure to come forward with this 

information earlier, Green’s credibility was questionable. Thus, the State requested that 
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the amended motion to dismiss be granted. The court again took the matter under 

advisement. 

¶ 15 Approximately one year later, on August 7, 2019, the defendant filed a pro se 

motion to remove his counsel, contending that counsel had not worked on his case, he 

had no contact with counsel since the last hearing, and counsel had not obtained 

subpoenas for any of the witnesses that he wanted to testify at his evidentiary hearing. 

On November 25, 2019, the defendant filed a pro se request for a prompt hearing. 

¶ 16 On June 26, 2020, the trial court held a hearing, at which the defendant indicated 

that he wanted counsel removed from his case because he had not spoken with counsel 

since August 30, 2018, and counsel had not worked on his case. The defendant indicated 

that he and his parents had written to counsel, but counsel replied that he was not going to 

do anything on the case until “this motion was resolved.” The defendant further 

indicated that counsel had said that he wanted to call witnesses for an evidentiary

hearing, but he had not done anything. Counsel responded by acknowledging that he had 

not had any contact with the defendant since August 2018. However, he explained that, 

in the intervening period, the defendant filed the motion to remove him as counsel, and 

his standard practice was to cease working on the case once such a motion was filed. 

Counsel indicated that Green had said that he would be in contact if he wanted to testify, 

but counsel had not heard from him. After hearing the arguments, the court determined 

that there was no cause to remove counsel, explaining that there were limited resources to 

pay for special defenders. 
9 

¶ 17 The trial court then proceeded with the hearing, indicating that Green had been 

subpoenaed as a witness, and that, although it did not anticipate conducting a hearing 

with Green, it wanted to inquire on “his stance on being a witness.” Before any 

questioning, Green indicated that he did not know anything about any testimony and why 

he was there. When the court questioned whether he was willing to testify for the 

defendant, Green responded that he needed to discuss it with his attorney, and he did not 

know what was going on. He then reiterated that he was not willing to testify until he 

talked to his attorney. The State then renewed its motion to dismiss, arguing that Green’s 

testimony was a “strong part” of the defendant’s argument for a third-stage evidentiary 

hearing; there had not been a showing that would justify advancing the postconviction 

petition to the third stage; and the court had gone above and beyond to arrange for Green 

to testify, but Green had provided no evidence that would support the postconviction 

petition. 

¶ 18 In response, the defendant’s counsel argued that Green was not the only witness 

that the defendant wanted to call at the evidentiary hearing; that there was sufficient 

evidence and witnesses to present at an evidentiary hearing; and that, based on the trial 

court’s previous denial of the State’s motion to dismiss, the petition should be at the third 

stage of the postconviction proceedings. After hearing the arguments, the court denied 

the State’s oral motion to dismiss but noted that the State could file a written motion to 

renew it. The court then reiterated that, at this time, the State’s motion to dismiss was 

denied. 
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¶ 19 After the trial court announced its ruling, the defendant expressed confusion as to 

what stage they were at in the postconviction proceedings. The court then explained that 

the State made an oral motion to dismiss the case, and the court denied it at this time. 

However, the court noted that the State could file a written motion to dismiss. The court 

explained that the main reason why the motion was denied was because it was an oral 

motion, and the court wanted it in writing. The defendant then asked whether this 

hearing was his evidentiary hearing. The court responded, “Well, I mean in some ways, 

you can say that, because this is the second time for Mr. Green to get to have an 

opportunity—or for us to find out if he wanted to testify or not, and twice we have heard 

him say no.” 

¶ 20 On July 13, 2020, the defendant’s counsel filed a witness list for the third-stage 

evidentiary hearing and requested a special investigator to locate and subpoena witnesses. 

On December 14, 2020, the State filed a second amended motion to dismiss the 

defendant’s postconviction petition, which reiterated the arguments made in the previous 

motions to dismiss. Additionally, the State argued that the defendant’s postconviction 

petition was premised on the argument that Green possessed material information 

regarding his actual innocence and that, after asking Green about the matter, it was clear 

that the defendant’s assertions were meritless. 

¶ 21 On March 18, 2021, the trial court entered an order denying the defendant’s 

postconviction petition. In the order, the court indicated that, at the July 18, 2017, 

hearing, on the State’s motion to dismiss, the court granted the defendant an opportunity 

for a third-stage evidentiary hearing so that “Green could testify,” despite the weight of 
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the evidence against the defendant and the unusual circumstances surrounding Green’s 

affidavit. The court noted that Green was given two opportunities to testify on the 

defendant’s behalf, but he refused to testify both times. Thus, the court found that the 

broad allegations in the defendant’s postconviction petition were not supported or were 

contradicted by the affidavits, exhibits, and record. The court also found that the 

defendant’s ineffective assistance of trial counsel claims had been examined and rejected 

by the trial and appellate courts, and his claim of new evidence could not defeat the 

overwhelming evidence against him. Accordingly, the court concluded that the 

defendant had failed to make a substantial showing of a constitutional violation and 

denied his postconviction petition. 

¶ 22 On April 5, 2021, the defendant filed a pro se motion to reconsider the trial court’s 

ruling. Thereafter, on April 7, 2021, the court denied the motion to reconsider. The 

defendant appeals. 

¶ 23 II. ANALYSIS 

¶ 24 On appeal, the defendant argues that this court should reverse the trial court’s 

denial of his postconviction petition and remand for a proper third-stage evidentiary 

hearing because it was unclear at what stage of the postconviction proceedings the court 

denied his petition. Specifically, the defendant contends that because (1) the State’s 

initial motion to dismiss was denied, (2) the State never filed an answer, (3) the State’s 

subsequent amended motion to dismiss was untimely filed, and (4) the court sought 

information beyond what second-stage proceedings allow for when it had Green testify, 

the record was not clear whether they were at the second or third stage of the 
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postconviction proceedings. The defendant argues that the underlying proceedings were 

a mix of second- and third-stage proceedings, and neither stage was properly conducted. 

Thus, he contends that this confusion prevented him from having an evidentiary hearing 

where he had a fair opportunity to present evidence on his postconviction petition. 

¶ 25 The Act provides a three-stage procedure for a petitioner alleging substantial 

deprivations of his constitutional rights. People v. Hodges, 234 Ill. 2d 1, 10 (2009). At 

the first stage, the trial court, without input from the State or further pleadings from 

petitioner, determines if the petition is frivolous or patently without merit. People v. 

Gaultney, 174 Ill. 2d 410, 418 (1996). If the petition is not dismissed at this stage, then it 

advances to the second stage where counsel may be appointed to indigent petitioners (725 

ILCS 5/122-4 (West 2020)) and where the State is permitted to file a motion to dismiss or 

an answer to the petition (id. § 122-5). People v. Thomas, 2013 IL App (2d) 120646, ¶ 5. 

If the State’s motion to dismiss is filed and denied, the State must file an answer within 

20 days after the denial. 725 ILCS 5/122-5 (West 2020). The parties may not file other 

pleadings unless the court permits additional pleadings on its own motion or on the 

motion of either party. Id. Also, the court may, in its discretion, “make such order as to 

amendment of the petition or any other pleading, or as to pleading over, or filing further 

pleadings, or extending the time of filing any pleading other than the original petition, as 

shall be appropriate, just and reasonable and as is generally provided in civil cases.” Id. 

¶ 26 At the second stage, the trial court must determine whether the petition and any 

accompanying documentation makes a substantial showing of a constitutional violation. 

People v. Edwards, 197 Ill. 2d 239, 246 (2001). If petitioner satisfies his burden of 
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making a substantial showing of a constitutional violation, then the petition advances to a 

third-stage evidentiary hearing. Id. However, if no such showing is made, then the 

petition is dismissed. Id. 

¶ 27 When the State moves to dismiss the postconviction petition, the trial court only 

rules on the legal sufficiency of petitioner’s allegations. People v. Domagala, 2013 IL 

113688, ¶ 35. At this stage, the trial court must take all well-pleaded facts that are not 

positively rebutted by the record as true. People v. Pendleton, 223 Ill. 2d 458, 473

(2006). The question is whether the allegations raised in the postconviction petition, 

which are liberally construed in favor of petitioner and taken as true, are sufficient to 

invoke relief under the Act. People v. Sanders, 2016 IL 118123, ¶ 31. Since this stage 

involves purely a legal determination, the trial court is precluded from engaging in any 

fact-finding or credibility determinations. Id. ¶ 42; People v. Coleman, 183 Ill. 2d 366, 

380-81 (1998). The Act contemplates that these determinations will be made at the 

evidentiary stage, not the dismissal stage, of the postconviction proceedings. People v. 

Dupree, 2018 IL 122307, ¶ 29. Thus, at a third-stage evidentiary hearing, the court acts 

as fact finder, determines witness credibility and the weight to be given particular 

testimony and evidence, and resolves any evidentiary conflicts. People v. Young, 2022 

IL App (1st) 210534, ¶ 40. 

¶ 28 Here, the State’s initial motion to dismiss was denied on February 6, 2014. At this 

point, the case should have proceeded to a third-stage evidentiary hearing under the 

procedure set forth in the Act. Instead, the judge on the case resigned, the case was

thereafter reassigned to a new judge, and the State sought leave to file an amended 
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motion to dismiss. The trial court granted the State’s request and gave the State 28 days 

to file an amended motion. The defendant contends, on appeal, that, although the Act 

permits amendments where it is just and reasonable, it does not permit a party to continue 

filing amended motions to dismiss until they are ultimately successful. In making this 

argument, the defendant notes that the court should consider four factors when deciding 

whether to allow an amendment of a pleading: (1) whether the proposed amendment 

would cure the defective pleading, (2) whether other parties would sustain prejudice or 

surprise by virtue of the proposed amendment, (3) whether the proposed amendment is 

timely, and (4) whether previous opportunities to amend the pleading could be identified. 

See Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992). The 

defendant here argues that the State did not have a legitimate reason to amend its denied 

motion to dismiss; instead, the State’s only reason for filing an amended motion was “to 

get a second-bite at the apple” with a new judge. 

¶ 29 Although, during the postconviction proceedings, the State indicated that the 

defendant had amended his postconviction petition, this contention is not supported by 

the record. There is no indication that the defendant ever amended his postconviction 

petition after the State’s initial motion to dismiss was denied. As the defendant did not 

amend his postconviction petition to include new allegations and the amended motion to 

dismiss made similar arguments to those in the already denied motion, it does not seem 

just and reasonable for the State here to be given an opportunity to amend its motion once 

there was a change in judge. 
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¶ 30 Then, once the trial court granted the State permission to file an amended motion, 

the State did not file that amended motion until January 26, 2017, more than two years 

after the court’s order allowing the amendment. Although the State, in the postconviction 

proceedings, sought to blame the defendant for its delay in filing the amended motion, 

most of the delays in the proceedings were out of the defendant’s control. 

¶ 31 Moreover, after the State finally filed its amended motion to dismiss, it appeared 

that the trial court operated as if the postconviction petition had proceeded to the third 

stage of the postconviction proceedings, even though its ultimate ruling was based on the 

second stage. After the hearing on the amended motion to dismiss, the trial court entered 

an order, stating that it wanted additional argument and information concerning Green 

and his affidavit before it ruled on the motion. However, Green refused to testify on the 

defendant’s behalf at the two subsequent hearings and, thus, did not substantiate the 

statements that he made in his affidavit, or the allegations made in the defendant’s 

postconviction petition. 

¶ 32 During these hearings, there was understandably some confusion as to what stage 

of the postconviction proceedings they were in. This was exacerbated by the trial court’s 

references to Green testifying; the court responding that “We’re here for the hearing” 

when asked by counsel for clarification; and the court responding to the defendant’s 

question about whether the second hearing was his evidentiary hearing as follows: “in 

some ways, you can say that, because this is the second time for Mr. Green to get to have 

an opportunity—or for us to find out if he wanted to testify or not.” Also, in its order 
16 

denying the postconviction petition, the court indicated that it had granted the defendant 

an opportunity for a third-stage evidentiary hearing so that Green could testify. 

¶ 33 As explained above, at the second stage of the postconviction proceedings, the 

postconviction petition is supposed to be liberally construed in defendant’s favor and 

taken as true. As this stage only involves a legal determination, the trial court is 

precluded from engaging in fact-finding or credibility determinations. Instead, those 

determinations should be made at a third-stage evidentiary hearing. Thus, the court here 

should not consider any potential issues with Green’s testimony when ruling on the 

State’s amended motion to dismiss at the second stage of the postconviction proceedings. 

The defendant’s postconviction petition, along with Green’s affidavit, should be taken as 

true as long as they are not positively rebutted by the record. However, Green was twice 

brought before the court and questioned about his willingness to testify in support of the 

defendant’s postconviction petition. Thus, any in-court questioning of Green about the 

statements that he made in his affidavit would be outside the scope of second-stage 

proceedings. 

¶ 34 The State argues that the record is clear that the proceedings were at the second 

stage, and the trial court merely wanted to ascertain whether Green would testify if the 

matter proceeded to a third-stage evidentiary hearing. The State also contends that there 

were no procedural issues with what occurred in this case because Green’s testimony did 

not involve resolving any factual disputes raised by the postconviction petition. 

However, this is contradicted by the State’s arguments in support of dismissal. 

Specifically, the State argued that Green made no statement that the defendant was 
17 

involved in the shooting while on the stand, and, thus, the defendant’s postconviction 

claims were meritless and could not be substantiated. The State also argued that the court 

went above and beyond to arrange for Green to testify, but Green had provided no 

evidence that would support the defendant’s petition. The State further argued that Green 

was not a credible witness; however, this type of determination is only permitted at the 

third stage (we note that the State did indicate that this argument may be premature). See 

Sanders, 2016 IL 118123, ¶ 42 (credibility determinations may be made only at a thirdstage evidentiary hearing). 

¶ 35 Based on the above, we find that the trial court here proceeded as if the 

postconviction proceedings had advanced to the third stage, but the defendant was not 

given an opportunity to present additional witness testimony or evidence in support of his 

claims. Thus, we remand the matter for a proper third-stage evidentiary hearing where 

the defendant is appointed new counsel and is given the opportunity to present evidence 

in support of his claims. 

¶ 36 III. CONCLUSION 

¶ 37 For the foregoing reasons, we reverse the denial of the defendant’s amended 

postconviction petition and remand the cause to the trial court for a third-stage 

evidentiary hearing on the defendant’s petition. 

¶ 38 Reversed and remanded.