2015 IL App (3d) 130575
Opinion filed December 28, 2015
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2015
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Plaintiff-Appellee, ) Peoria County, Illinois,
)
v. ) Appeal No. 3-13-0575
) Circuit No. 01-CF-17
JARVIS JACKSON, )
) The Honorable
Defendant-Appellant. ) Stephen Kouri,
) Judge, Presiding.
_____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court, with opinion.
Justice Holdridge concurred in the judgment and opinion.
Justice Schmidt dissented, with opinion.
_____________________________________________________________________________
OPINION
¶1 Defendant Jarvis Jackson pled guilty to two counts of first degree murder in exchange for
a sentence of natural life in prison. Five years later, he filed a postconviction petition, which the
trial court dismissed. Three years after that, defendant filed a motion for leave to file a
successive postconviction petition, which the trial court granted. Defendant’s postconviction
counsel filed a motion to withdraw and dismiss defendant’s successive postconviction petition.
The trial court granted the motion. Defendant appeals the dismissal of his successive
postconviction petition. We reverse and remand.
¶2 FACTS
¶3 In January 2001, defendant was charged with two counts of first degree murder for
killing Bertha Diaz and Michael Douglas. Defendant initially told police that he was present
during the murders of Diaz and Douglas but that Dwaine Johns fired the shots that killed them.
Two days later, defendant admitted to police that he fired the fatal shots. Defendant’s confession
was videotaped. Defendant later filed a motion to suppress the statements that he made to police,
but the trial court denied the motion.
¶4 In March 2001, defendant pled guilty to two counts of first degree murder in exchange
for a sentence of natural life in prison. He admitted that he shot and killed Diaz and Douglas.
Five years later, defendant filed a motion to withdraw his guilty plea, which the trial court
denied. Defendant appealed, and we dismissed his appeal for lack of jurisdiction.
¶5 In July 2006, defendant filed a pro se postconviction petition, arguing ineffective
assistance of counsel and actual innocence based on newly discovered evidence. Attached to his
petition, were unnotarized affidavits from himself and Johns, claiming that their statements to
police were false. He also included copies of grand jury transcripts and a photographic line-up in
which Douglas’ five-year-old son identified someone other than defendant as the shooter.
¶6 In August 2006, the court summarily dismissed defendant’s postconviction petition.
Defendant filed a motion to reconsider, which the trial court denied. Defendant then appealed.
We affirmed the trial court’s dismissal, finding that (1) defendant’s and Johns’ written statements
were not affidavits because they were not notarized, that (2) the remaining evidence defendant
presented was not “newly discovered,” and (3) defendant’s ineffective assistance claim was
rebutted by the record, which included defendant’s videotaped confession. People v. Jarvis,
No. 3-06-0702 (2008) (unpublished order under Supreme Court Rule 23).
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¶7 In July 2009, defendant filed a motion for leave to file a successive postconviction
petition, arguing that prison policy prevented his and Johns’ affidavits from being notarized. He
also asserted that he was denied effective assistance of counsel. Attached to the motion were
grand jury transcripts, police reports, wire tap transcripts and new notarized affidavits from
himself and Johns. The trial court granted defendant’s motion, and postconviction counsel was
appointed to represent defendant.
¶8 From April 2010 to October 2012, defendant wrote many letters to the court and filed
many pro se motions, complaining about postconviction counsel’s lack of attention and
requesting new counsel. Defendant also filed a complaint with the Illinois Attorney Registration
and Disciplinary Committee against his postconviction counsel. The State moved to strike all of
defendant’s pro se filings because defendant was represented by counsel.
¶9 In November 2012, defendant’s postconviction counsel filed a certificate pursuant to
Illinois Supreme Court Rule 651(c) (eff. Apr. 26, 2012), as well as a “Motion to Dismiss/Leave
to Withdraw.” According to counsel’s motion, defendant’s trial counsel was not ineffective for
advising defendant to plead guilty based on the evidence against him, defendant’s actual
innocence claim lacked merit, and none of the material attached to defendant’s petition
constituted newly discovered evidence. The motion sought dismissal of defendant’s petition and
permission for postconviction counsel to withdraw.
¶ 10 A hearing was held on counsel’s motion. Defendant was present and informed the court
that he had spoken to postconviction counsel only two times. The court asked the prosecutor if
the State had a position regarding the motion. The prosecutor responded that the motion was
“exceptionally well taken” given that defendant pled guilty, confessed on video and implicated
himself at Johns’ trial. The prosecutor further stated: “I would ask that the Court rule on
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[postconviction counsel’s] Motion to Dismiss, because I don’t see any merit whatsoever in
anything [defendant has] filed.”
¶ 11 The court granted counsel’s motion to withdraw and took “all other matters *** under
advisement.” Thereafter, the trial court entered an order dismissing defendant’s successive
postconviction petition.
¶ 12 ANALYSIS
¶ 13 A postconviction proceeding is a collateral proceeding that allows review of
constitutional issues that were not, and could not have been, adjudicated on direct appeal.
People v. Ortiz, 235 Ill. 2d 319, 328 (2009). The Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2010)) generally contemplates the filing of only one postconviction
petition. Ortiz, 235 Ill. 2d at 328. However, a defendant may seek leave of court to file a
successive postconviction petition. 725 ILCS 5/122-1(f) (West 2010). Obtaining leave of court
is a condition precedent to filing a successive postconviction petition. People v. Simmons, 388
Ill. App. 3d 599, 605 (2009).
¶ 14 When a defendant is granted leave to file a successive postconviction petition, the
petition is effectively advanced to the second stage of postconviction proceedings. See People v.
Wrice, 2012 IL 111860, ¶ 90; People v. Almodovar, 2013 IL App (1st) 101476, ¶ 81. Section
122-5 of the Act governs proceedings at the second stage and provides in pertinent part as
follows:
“Within 30 days *** the State shall answer or move to dismiss. In the event that a
motion to dismiss is filed and denied, the State must file an answer within 20 days
after such denial. No other or further pleadings shall be filed except as the court
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may order on its own motion or on that of either party.” 725 ILCS 5/122-5 (West
2010).
¶ 15 The Act requires that the State “move to dismiss” the postconviction petition. Id. Since
the Act does not define the word “move,” we look to a dictionary to determine its ordinary and
popularly understood meaning. See Commonwealth Edison Co. v. Illinois Commerce Comm’n,
2014 IL App (1st) 132011, ¶ 33. According to Black’s Law Dictionary, “move” means “[t]o
make an application (to a court) for a ruling, order or some other judicial action.” Black’s Law
Dictionary 1035 (7th ed. 1999).
¶ 16 Postconviction defense counsel may not argue against a client’s interests by seeking
dismissal of a defendant’s postconviction petition. See People v. Shortridge, 2012 IL App (4th)
100663, ¶ 15; People v. Sherman, 101 Ill. App. 3d 1131, 1133-34 (1981). If appointed
postconviction counsel believes that a client’s postconviction petition is frivolous and patently
without merit, then counsel should file a motion to withdraw as counsel, rather than seek
dismissal of the petition. People v. Elken, 2014 IL App (3d) 120580, ¶ 36. After counsel has
withdrawn, the court may appoint new counsel or allow the defendant to proceed pro se.
Shortridge, 2012 IL App (4th) 100663, ¶ 15.
¶ 17 It is improper for a trial court to dismiss a postconviction petition simply because
postconviction counsel has been allowed to withdraw as counsel. See People v. Thomas, 2013
IL App (2d) 120646, ¶¶ 3, 8; People v. Greer, 341 Ill. App. 3d 906, 910 (2003). “The fact that
counsel has been granted leave to withdraw does not mean that the postconviction petition is
dismissed.” Greer, 341 Ill. App. 3d at 910. Instead, the State must file a motion to dismiss the
petition. Id.
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¶ 18 Here, appointed counsel’s “Motion to Dismiss” was improper. See Elken, 2014 IL App
(3d) 120580, ¶ 36; Shortridge, 2012 IL App (4th) 100663, ¶ 15; Sherman, 101 Ill. App. 3d at
1133-34. The State, not defendant’s counsel, was required to bring such a motion. See 725
ILCS 5/122-5 (West 2010).
¶ 19 In this case, not only did the State fail to file a motion to dismiss but the State failed to
“move to dismiss” defendant’s postconviction petition. After postconviction counsel presented
his “Motion to Dismiss/Leave to Withdraw,” the prosecutor stated that the motion was
“exceptionally well taken” and asked the court to “rule on” it. However, as set forth above, to
the extent that the motion requested dismissal of defendant’s petition, it was improper since it
was filed by defendant’s own counsel. See Elken, 2014 IL App (3d) 120580, ¶ 36; Shortridge,
2012 IL App (4th) 100663, ¶ 15; Sherman, 101 Ill. App. 3d at 1133-34. The only issue properly
before the court was whether postconviction counsel should be allowed to withdraw. The State’s
acquiescence to postconviction counsel’s request to withdraw is not the equivalent of moving to
dismiss the petition. Even if we consider the totality of the motion, the prosecutor’s statements
were still insufficient under the Act. The prosecutor’s mere agreement with the motion and his
request that the trial court “rule on” it fall short of “mov[ing] to dismiss” defendant’s
postconviction petition.
¶ 20 Even if the prosecutor’s statements were sufficient to qualify as an oral motion to
dismiss, such a motion is not authorized by the Act. The first sentence of section 122-5 does not
require that a motion to dismiss be in writing. However, the second sentence refers to a “filed”
motion to dismiss. The remainder of that sentence and the following sentence of that section
contain the words “file” or “filed” two more times. See 725 ILCS 5/122-5 (West 2010). Only a
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written document can be filed. See People ex rel. Oelsner v. Andrus, 299 Ill. 50, 57 (1921).
Thus, when read as a whole, section 122-5 contemplates the filing of a written motion to dismiss.
¶ 21 The requirement of a written motion to dismiss is also supported by case law. See Greer,
341 Ill. App. 3d at 910 (“the State is required to file an answer or a motion to dismiss”). And, in
Sherman, 101 Ill. App. 3d at 1133-34, we held that a prosecutor’s oral motion to dismiss a
postconviction petition was improper because it deprived a defendant of notice and an
opportunity to respond. Id. at 1133.
¶ 22 An oral motion to dismiss made at a hearing where postconviction counsel has moved to
withdraw is especially problematic because a motion to withdraw separates defense counsel’s
interests from those of the defendant. See id. at 1134. The defendant, as a layperson, “cannot be
expected to jump up at a hearing and voice his objections while his attorney is actively arguing
against his interests.” Elken, 2014 IL App (3d) 120580, ¶ 35. A defendant who lacks counsel to
defend his interests is entitled to written notice of a motion to dismiss so that he can adequately
prepare to defend himself pro se. See Sherman, 101 Ill. App. 3d at 1134.
¶ 23 Because postconviction counsel’s “Motion to Dismiss” was improper and because the
State failed to properly “move to dismiss” defendant’s postconviction petition, we reverse the
trial court’s order dismissing defendant’s postconviction petition and remand to the trial court to
allow defendant to proceed pro se.
¶ 24 CONCLUSION
¶ 25 The judgment of the circuit court of Peoria County is reversed and the cause is remanded
for further proceedings.
¶ 26 Reversed and remanded.
¶ 27 JUSTICE SCHMIDT, dissenting.
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¶ 28 While neither party argues that the court erred in granting defendant leave to file a
successive postconviction petition, I would find that the court did err. Successive postconviction
petitions are disfavored by Illinois courts. People v. Smith, 2014 IL 115946, ¶ 31. The court
should deny leave to file a successive postconviction petition where it is clear that the claims
alleged fail to justify further proceedings. Id. ¶ 35. Defendant did not allege, let alone establish,
either cause or prejudice. 725 ILCS 5/122-1(f) (West 2010). Defendant cannot establish cause
for failing to previously file the claims where, in fact, he raised the same claims in his direct
appeal, motion for relief from judgment, and initial postconviction petition. Nevertheless, I write
further to convey my disagreement with several portions of the majority’s ruling.
¶ 29 Toward the end of its opinion, the majority holds that a defendant who lacks counsel to
defend his interests has the right to notice of a motion to dismiss his postconviction petition.
Defendant was afforded that right here. Postconviction counsel sent defendant notice of his
motion to dismiss the postconviction petition/motion to withdraw. The court notified defendant
about the upcoming hearing pursuant to defense counsel’s motion. Further, defendant was
present for the hearing. This case is factually different than People v. Kitchen, 189 Ill. 2d 424
(1999), and People v. Bounds, 182 Ill. 2d 1 (1998), where the court held that the trial court
denied defendants’ due process rights by dismissing their petitions. In Kitchen, the parties were
in court arguing discovery motions and in Bounds, the parties were in court on a status hearing.
Here, defendant was present in court on counsel’s Greer motion. Defendant knew that the court
was going to hear arguments concerning the Greer motion. Thus, the court afforded defendant
the opportunity to prepare and explain why postconviction counsel’s allegations were in fact
unfounded.
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¶ 30 The majority also holds that postconviction counsel may not argue against a client’s
interests by seeking dismissal of a defendant’s postconviction petition. This position ignores the
fact that a Greer motion is, in substance, a motion to dismiss. When postconviction counsel files
a motion to withdraw, he must give his reasons for doing so. By providing reasons, he
essentially agrees that the court should dismiss defendant’s postconviction petition. Elken, 2014
IL App (3d) 120580, ¶ 36. In fact, our supreme court has recognized that a Greer motion is
“effectively an ex post request to deny the defendant” the relief sought in the postconviction
petition. People v. Kuehner, 2015 IL 117695, ¶ 22. As such, I would find no error in counsel’s
decision to combine his motion to dismiss with his motion to withdraw as counsel. Both motions
sought the same outcome: a finding that defendant’s petition was meritless.
¶ 31 The majority next claims that the failure of the State to file a written motion to dismiss
denied defendant due process. Not so. Section 122-5 does not require the State to file a written
motion to dismiss but, rather, the State need only “move to dismiss.” 725 ILCS 5/122-5 (West
2010). Had the General Assembly wanted counsel to file a written motion to dismiss a
postconviction petition, it would have included such a requirement in section 122-5.
¶ 32 Based on the following exchange that took place at the hearing on counsel’s Greer
motion and motion to dismiss, it is clear that the State moved the court to dismiss defendant’s
postconviction petition. After defendant’s counsel presented his motions, the court asked the
State to explain its position on the matter. The State replied:
“I’ve also reviewed [defense counsel’s] Greer motion, Motion
to Dismiss, and it is exceptionally well taken. ***
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I don’t see what in the world he could actually argue that he’s
actually innocence – – innocent when he himself on multiple
occasions said he did it.
So, no. I think that – – and I would ask that the Court rule on
[defense counsel’s] Motion to Dismiss, because I don’t see any
merit whatsoever in anything he’s filed.”
The State adopted defense counsel’s motion to dismiss and moved the court to dismiss
defendant’s postconviction petition. While no doubt that the preferred method would be for the
State to file a written motion adopting counsel’s motion and incorporating it by reference, the
statute does not require that the State do so; the State must simply move to dismiss, which it did
here.
¶ 33 The majority seems to believe the appropriate course of action would be to allow the
defendant to proceed pro se. To do what? Pursue a frivolous petition? An attorney who seeks
to withdraw under Greer does so because he has determined that amending defendant’s petition
would be unethical and in direct violation of Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994).
Once the court has determined defendant’s petition is meritless and has allowed counsel to
withdraw in accordance with Greer, defendant’s statutory right to counsel under the Act is
extinguished. Thomas, 2013 IL App (2d) 120646, ¶ 7. This makes sense: “successor counsel
would be obliged to withdraw for precisely the same reasons that led his or her predecessor to
withdraw.” Id.
¶ 34 Along the same lines, it would be oxymoronic to allow the Public Defender’s office to
withdraw based on the court’s finding that defendant’s claims are meritless, but allow defendant
to proceed pro se on the same meritless claims. Rule 137 applies with equal force to pro se
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litigants. Neither an attorney nor a party may deliberately mislead the court with respect to the
facts or the laws, nor may they consume the time and energies of the court by advancing a
frivolous argument. McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 436
(1988). The only logical action for the court to take after granting a Greer motion is to dismiss
defendant’s petition. At this point, the court is no longer dismissing defendant’s claims sua
sponte. Instead, after notice and an opportunity to be heard the court agrees with counsel’s
findings that defendant’s claims are meritless.
¶ 35 Furthermore, this is no different from situations where we grant Anders (Anders v.
California, 386 U.S. 738 (1967)) and Finley (Pennsylvania v. Finley, 481 U.S. 551 (1987))
motions and simultaneously dismiss a defendant’s appeal. In re Juan M., 2012 IL App (1st)
113096; People v. Singleton, 17 Ill. App. 3d 924 (1974). I acknowledge that procedurally this
case is at a different stage; counsel filed a Greer motion at the trial court level as opposed to the
appellate court level. However, in these situations, the court must determine that defendant’s
claims are meritless prior to allowing counsel to withdraw. Therefore, commonsense dictates
that the trial court dismisses the petition after granting a Greer motion. It only makes sense that
upon granting a Greer motion that the trial court simultaneously dismiss the postconviction
petition. If upon appeal the reviewing court finds error granting the Greer motion, the
postconviction petition will be reinstated.
¶ 36 Again, on appeal, defendant does not argue that the trial court erred in allowing counsel
to withdraw, but only in dismissing the petition. A Greer motion only permits the withdrawal of
counsel after the court finds that the defendant’s claims are meritless. Here, the court found the
claims meritless and not only allowed defendant’s attorney to withdraw, but also allowed the
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office of the Public Defender to withdraw. There was nothing left for the court to do but dismiss
the petition.
¶ 37 The majority hangs its hat on statutory construction. As has already been observed, the
General Assembly did not anticipate defense motions to withdraw based on Supreme Court Rule
137. People v. Greer, 212 Ill. 2d 192, 209 (2004). Nonetheless, the supreme court in Greer
rejected the notion that the absence of any reference to Rule 137 obligations in the Act (725
ILCS 5/122-2 et seq. (West 2000)) precluded such motions. Greer, 212 Ill. 2d at 209. We are
bound not to construe a statute in a manner that leads to absurd results. People v. Lewis, 234 Ill.
2d 32, 44 (2009). What could be more absurd than a trial judge, in effect, telling a defendant, “I
have looked at your counsel’s motion to withdraw, looked at the record and heard arguments. I
agree that any claims raised in your postconviction petition are frivolous and patently without
merit. However, until someone in the State’s Attorney’s office musters up the ambition to file a
motion to dismiss, you may soldier on with your frivolous petition.”? A remand here sends
everyone on a fool’s errand. So now we will have two appeals rather than one. What else can
the trial judge do but dismiss the petition after having previously found that it is frivolous and
patently without merit? Defendant can still appeal the ruling. I cannot accept the suggestion that
the General Assembly intended the result reached by the majority. I, therefore respectfully
dissent.
¶ 38 As such, I would find that the court properly dismissed defendant’s successive
postconviction petition.
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