2018 IL App (3d) 160165
Opinion filed June 27, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-16-0165
v. ) Circuit No. 05-CF-510
)
DAVID F. BALLER, ) Honorable
) Amy M. Bertani-Tomczak,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE WRIGHT delivered the judgment of the court.
Justice Holdridge specially concurred, with opinion.
Justice Schmidt dissented, with opinion.
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OPINION
¶1 Defendant, David F. Baller, appeals from the trial court’s order denying his motion for
leave to file a successive postconviction petition. On appeal, defendant argues the State
erroneously filed an objection to his motion for leave and the court erroneously considered the
State’s objection in denying defendant leave. We vacate and remand with directions.
¶2 FACTS
¶3 Defendant entered an open plea of guilty to one charge of aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(8) (West 2002)). The trial court admonished defendant that he
could receive a potential sentence of 6 to 30 years’ imprisonment and the sentence would be
served consecutive to the prison sentence defendant was then serving. Defendant indicated he
understood the potential sentence. The court sentenced defendant to 30 years’ imprisonment. The
court ordered the sentence to run consecutively to the sentence imposed in Cook County case
No. 05-CR-0778501.
¶4 On November 18, 2011, defendant filed a pro se postconviction petition, which raised
claims of ineffective assistance of trial and appellate counsel. The court summarily dismissed the
petition. On appeal, we affirmed the court’s dismissal. People v. Baller, 2014 IL App (3d)
120214-U.
¶5 On June 19, 2015, defendant filed a pro se motion for leave to file a successive
postconviction petition. The State filed a written objection to defendant’s motion. At a
subsequent court date, when only the State was present, the court denied defendant’s motion,
stating:
“I’ve had a chance to review the defendant’s petition for leave to file a
successive post conviction [sic]. I also had a chance to read the State’s motion
to—or your objection, and I’m going to grant your objection. I’m not going to
allow him to file a successive petition for post-conviction relief.”
Defendant appeals from the trial court’s denial of his motion for leave to file a successive
postconviction petition.
¶6 ANALYSIS
¶7 Defendant argues the court impermissibly relied on input from the State before denying
defendant’s motion for leave to file a successive postconviction petition. Defendant requests a
reversal of the order denying his motion for leave and asks this court to remand the matter for the
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trial court to consider defendant’s motion anew, without input from the State. The State agrees
the trial court should not have considered the State’s position before denying defendant’s request
to file a successive postconviction petition. However, the State asserts that remand is
unnecessary. On appeal, the State requests this court to affirm the trial court’s order because
defendant’s motion did not adequately allege cause and prejudice.
¶8 The issue of whether reversible error arises when a trial court takes the State’s position
into consideration before ruling on a defendant’s motion seeking leave to file a successive
postconviction petition was recently addressed in People v. Bailey, 2017 IL 121450. In Bailey,
the supreme court held “it is premature and improper for the State to provide input to the court
before the court has granted a defendant’s motion for leave to file a successive [postconviction]
petition.” (Emphasis added.) Id. ¶ 20. Ultimately, the supreme court found section 122-1(f) of the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2016)) requires the trial court to
conduct an independent inquiry, without input from the State, before determining whether a
defendant is entitled to receive the requested leave necessary to file a successive postconviction
petition. Bailey, 2017 IL 121450, ¶ 24.
¶9 In People v. Munson, 2018 IL App (3d) 150544, this court had an opportunity to apply
Bailey to set aside a trial court’s decision granting the State’s motion to dismiss the defendant’s
motion for leave to file a successive postconviction petition. We further found that section 122-1
of the Act expressly contemplates the filing of the petition in the “ ‘trial court.’ ” Id. (quoting 725
ILCS 5/122-1 (West 2014)). Therefore, consistent with the spirit of Bailey and plain language of
the Act, we remanded the cause with directions for the trial court to conduct an independent
determination pertaining to whether defendant’s motion for leave satisified the requirement of
cause and prejudice. Id. ¶ 12.
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¶ 10 In this case, the State also opposed defendant’s motion for leave to file a successive
postconviction petition in the trial court. Here, the court considered the State’s opposition before
denying defendant’s motion. On appeal, both parties agree the trial court’s approach was
incorrect in light of Bailey. Consequently, we conclude that remand to the trial court for new
proceedings on defendant’s motion, held without input from the State, is appropriate.
¶ 11 The dissenting justice seems to agree that the trial court erred by considering the State’s
input but contends a remand in this case is not necessary. Specifically, the dissenting justice
declares our approach to remand the matter to the trial court in Munson misconstrues Bailey and
was “wrongly decided.” Infra ¶ 27. Rather than remanding the matter in the case at bar, the
dissent would simply affirm the trial court’s incorrect decision. Such an approach by the dissent
not only affirms the trial court’s erroneous procedures but inexplicably repeats the same error by
declaring the motion to be insufficient after adopting the State’s position on cause and prejudice,
as expressly argued by the State in this appeal.
¶ 12 We recognize that the Bailey court analyzed the contents of Bailey’s motion for leave to
file a supplemental postconviction petition. Bailey, 2017 IL 121450, ¶¶ 42-46. However, unlike
this court, the supreme court has been vested with broad supervisory authority by the Illinois
Constitution. Ill. Const. 1970, art. VI, § 16. These powers are not limited by any rules or means
for their exercise. People v. Salem, 2016 IL 118693, ¶ 20.
¶ 13 It appears the dissent bristles at our holding in Munson recognizing our intermediate
court of review does not possess the same broad supervisory authority exercised by our supreme
court in Bailey. The dissent announces that “[t]here is nothing about a successive postconviction
petition that would take it out of the realm of garden-variety appellate review.” Infra ¶ 29. The
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dissent suggests its approach “has nothing to do with supervisory authority but, rather, with our
license to affirm for any reason apparent in the record.” Infra ¶ 29.
¶ 14 While we acknowledge the generally accepted principle that an appellate court may
affirm on any basis found in the record, we conclude this general principle does not apply in the
case at bar. The Bailey court expressly held that “the State should not be permitted to participate
at the cause and prejudice stage of successive postconviction proceedings.” Bailey, 2017 IL
121450, ¶ 24. Bailey clearly held the State’s participation in the trial court constitutes error. Id.
We presume the holding in Bailey precludes the State’s discussion of cause and prejudice before
any court, including our court of intermediate review.
¶ 15 Here, the State’s entire seven-page appellee brief argues that defendant has failed to
establish cause and prejudice. Clearly, the appellate prosecutor has thoughtfully participated and
expressed the State’s views on the question of whether defendant’s motion in the trial court
established cause and prejudice. Ironically, the dissent relies on the State’s argument to the point
of adopting, verbatim, the State’s rationale that “[d]efendant’s ignorance of the law cannot
amount to cause sufficient to explain his failure to bring this claim in his initial postconviction
proceeding.” Infra ¶ 26. This is simply not the isolationist review required by Bailey.
¶ 16 Thus, we emphasize that the procedural posture of the instant case creates an exception to
the general principle that an appellate court may affirm on any basis found in the record. The
supreme court has expressly held that the Act is entirely a creature of statute and all rights derive
only from the statute. People v. De La Paz, 204 Ill. 2d 426, 432 (2003). Further, the supreme
court has expressly held that review of a motion for leave to file a successive postconviction
petition must be conducted in a venue free from State participation. Bailey, 2017 IL 121450,
¶ 24. The only way to honor these holdings is to reset the scales of justice and remand the matter
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to the trial court for an independent evaluation of defendant’s motion by expressly ignoring the
State’s input as expressed both in this court and the trial court.
¶ 17 CONCLUSION
¶ 18 The trial court’s order denying defendant’s motion for leave to file a successive
postconviction petition is vacated, and the matter is remanded with directions for the trial court
to conduct a de novo review of defendant’s motion prior to allowing any input from the State.
Defendant’s request to order the motion to be heard by a different judge is denied.
¶ 19 Vacated and remanded with directions.
¶ 20 JUSTICE HOLDRIDGE, specially concurring:
¶ 21 While I agree with the majority’s reversal and remand of this case, I respectfully deviate
from its analysis.
¶ 22 In Bailey, 2017 IL 121450, ¶ 24, the supreme court expressly held “that the State should
not be permitted to participate at the cause and prejudice stage of successive postconviction
proceedings.” The supreme court observed that “although the Act does not expressly prohibit the
State’s input, we find that the Act contemplates an independent determination by the circuit
court.” Id. The supreme court reiterated this holding throughout the 24 paragraphs that proceeded
it. See id. ¶¶ 25, 27, 39, 48. Following this clear delineation of a rule that requires “an
independent determination by the circuit court” (emphasis added) (id. ¶ 24), the supreme court
curiously proceeded to review Bailey’s motion outside of the circuit court and after considering
the State’s argument that the “defendant’s motion is deficient on its face.” Id. ¶¶ 41-46.
¶ 23 The instant case presents a scenario that is procedurally similar to Bailey. Following the
circuit court’s erroneous consideration of the State’s objection to the defendant’s motion for
leave, the State argued against the merits of the defendant’s motion in its appellee’s brief. In light
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of the State’s continued objection, and out of an abundance of caution, I agree that the case must
be remanded for the circuit court to make an independent determination of whether the defendant
has shown cause and prejudice. If we affirm the denial of the defendant’s motion, it is difficult to
say that our decision was not influenced, at least in some respect, by the State’s appellate
argument against the motion. See id. ¶ 33. Such influence from the State would clearly violate
the Bailey rule.
¶ 24 JUSTICE SCHMIDT, dissenting:
¶ 25 I respectfully dissent. I agree with the majority with respect to its determination that the
trial court erred in allowing the State to participate in the hearing to determine whether defendant
was entitled to leave to file a successive postconviction petition. I part company with the
majority when it determines application of Bailey requires reversal and remand. The Bailey
court, having found error by virtue of the State’s involvement in the trial court’s determination to
deny leave to file a successive postconviction petition, went on, in the interest of judicial
economy, to review defendant’s motion. People v. Bailey, 2017 IL 121450, ¶¶ 41-42. Because
the defendant’s motion failed to establish cause and prejudice, the court affirmed the trial court’s
denial of leave. Id. ¶ 46.
¶ 26 Here, it is clear that defendant has failed to allege facts to support cause. Specifically,
defendant alleged:
“2. There is cause for my failure to bring the claim contained in
the current petition in my previous post-conviction petition, in that
I was unaware of the MSR violation of due process, until my third
appeal in January of 2012.”
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Defendant’s ignorance of the law cannot amount to cause sufficient to explain his failure to bring
this claim in his initial postconviction proceeding. See People v. Evans, 2013 IL 113471, ¶ 13.
There is no need to discuss prejudice. Notwithstanding the error, the trial court properly denied
defendant’s motion for leave to file a successive postconviction petition. Any remand in this case
constitutes an absolute waste of judicial resources. The majority argues that since I, after
reviewing the record, came to the same conclusion as did the State, I must have relied upon the
State’s input. Supra ¶ 15. Not so! Coming to the same conclusion after a review of the record is
decidedly different than relying on the State’s argument. The defendant’s motion is deficient on
its face; ignorance of the law is not cause.
¶ 27 The majority relies on People v. Munson, 2018 IL App (3d) 150544, for the proposition
that we are without power to affirm in light of the error. Supra ¶¶ 9-10. I submit that Munson is
wrongly decided. The majority determines that we must remand because, “unlike this court, the
supreme court has been vested with broad supervisory authority by the Illinois Constitution.”
Supra ¶ 12.
¶ 28 The Bailey court’s review of the merits of the petition for leave had nothing to do with its
supervisory authority. Bailey, 2017 IL 121450. We can affirm for any reason apparent in the
record. City of Champaign v. Torres, 214 Ill. 2d 234, 241 (2005); Guzzo v. Snyder, 326 Ill. App.
3d 1058, 1064 (2001). Apparent in this record, as it was in Bailey, is the fact that the motion for
leave to file a successive postconviction petition is utterly without merit for the reasons set forth
above.
¶ 29 The Munson court’s train jumped the tracks in paragraph 10. Munson, 2018 IL App (3d)
150544, ¶ 10. It simply asserted that to review the record to evaluate whether the trial court’s
error prejudiced defendant involved an exercise of supervisory authority. It never discussed why
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that is so. The Munson court noted, “Notably, Illinois Supreme Court Rule 615 does not provide
the appellate court with the power to conduct a de novo hearing on defendant’s motion for leave
to file a successive postconviction petition.” Id. There is nothing novel or unique about affirming
the trial court in this case without remand, notwithstanding the trial court’s error below. We do it
all the time. Again, this has nothing to do with supervisory authority but, rather, with our license
to affirm for any reason apparent in the record. I need not cite any case authority for the notion
that “de novo” is an oft-used standard of review in the appellate court. In plain English, the trial
court reviewed and denied defendant’s motion for leave to file his successive postconviction
petition. The trial court erred in allowing the State to participate in that decision.
Notwithstanding the error, the ultimate judgment of the trial court was correct. We should affirm.
We do this thousands of times a year in cases not involving successive postconviction petitions.
There is nothing about a successive postconviction petition that would take it out of the realm of
garden-variety appellate review. That portion of the Munson court’s ruling, holding that
affirming without remand involves exercise of supervisory authority, appears to be an anomaly
in Illinois jurisprudence. As in Bailey, the error below was harmless.
¶ 30 I would affirm the trial court.
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