People v. Reyes

NOTICE 2024 IL App (4th) 230181-U
This Order was filed under
FILED
January 9, 2024
Supreme Court Rule 23 and is NO. 4-23-0181
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Morgan County
VICTOR M. REYES, ) No. 97CF73
Defendant-Appellant. )
) Honorable
) Christopher E. Reif,
) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court.
Justices Harris and Zenoff concurred in the judgment.

ORDER

¶1 Held: The appellate court granted the Office of the State Appellate Defender’s motion to
withdraw as counsel and affirmed the trial court’s judgment as no issue of
arguable merit could be raised on appeal.

¶2 Defendant, Victor M. Reyes, appeals from the trial court’s denial of his motion

for leave to file a successive postconviction petition. The Office of the State Appellate Defender

(OSAD) moves to withdraw as counsel on the ground no issue of arguable merit can be raised.

See Anders v. California, 386 U.S. 738 (1967). We grant OSAD’s motion and affirm the court’s

judgment.

¶3 I. BACKGROUND

¶4 On direct appeal, this court set forth all the relevant facts in this case. People v.

Reyes, No. 4-98-0787 (2000) (unpublished order under Illinois Supreme Court Rule 23).

Accordingly, we recite only those facts relevant to this appeal.
¶5 In May 1997, the State charged defendant by information with first degree murder

(720 ILCS 5/9-1(a)(2) (West 1996)) (count I), reckless homicide (id. § 9-3(a)) (count II),

attempted first degree murder (id. § 8-4(a), 9-1(a)(1)) (count III), aggravated battery of a senior

citizen (id. § 12-4.6(a)) (count IV), residential burglary (id. § 19-3) (count V), and theft (id. § 16-

1(a)(1)) (count VI). (The State later moved to dismiss the reckless homicide charge.)

¶6 Following an August 1998 trial, a jury found defendant guilty of all counts. In

October 1998, the trial court sentenced defendant to a 50-year prison term for first degree murder

and a mandatory consecutive 20-year term for attempted first degree murder. The court also

imposed three concurrent five-year sentences for each of the three remaining counts. In January

2000, on direct appeal, this court affirmed defendant’s convictions and sentences but remanded

with directions for the sentencing judgment to be amended to reflect 484 days’ sentence credit.

Reyes, slip order at 1-2, 33-34.

¶7 In December 2017, defendant pro se filed a petition for postconviction relief

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)), arguing

(1) ineffective assistance of trial counsel and (2) the first degree murder statute was facially

unconstitutional. Specifically, defendant contended he was denied the effective assistance of trial

counsel when his attorney failed to object to the State’s attorney’s “erroneous misstatement of

the law regarding what constitute[s] the offense of reckless homicide” during closing argument.

In February 2018, the trial court entered a written order dismissing the petition as patently

without merit. In May 2020, this court affirmed. People v. Reyes, 2020 IL App (4th) 180190-U,

¶ 28.

¶8 In January 2023, defendant filed a motion for leave to file a successive

postconviction petition, a supporting memorandum, and the proposed successive petition.

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Defendant argued both his trial and appellate counsel were ineffective for their alleged failure to

adequately investigate his “background.” Specifically, defendant maintained they failed to

investigate the implications of his mental health condition as it related to his legal responsibility

for his crimes. Defendant also argued his trial counsel provided ineffective assistance in failing

to adequately consult or communicate with him before trial and in failing to answer or return the

phone calls of an eyewitness, Tina Houston, who could have contradicted the testimony of other

eyewitnesses. (According to the petition and an attached affidavit from Houston, Houston, in the

one conversation she was able to have with defendant’s trial counsel, told counsel defendant

wanted to speak with him but had been unsuccessful in doing so.) Defendant additionally argued

statements he gave to law enforcement officers while at Passavant Area Hospital should have

been suppressed because the officers continued to question him after he requested an attorney.

¶9 The trial court denied defendant’s motion, concluding defendant raised these

claims earlier in the case, including in his initial postconviction petition. The court also found

defendant had “failed to meet his burden of showing cause and prejudice or claim of actual

innocence.”

¶ 10 In February 2023, defendant filed a motion to reconsider. Defendant asserted he

only needed to establish the “gist” of a constitutional claim. Defendant also cited cases

pertaining to a claim of actual innocence due to newly discovered evidence. However, defendant

did not specify any newly discovered evidence in his case. The trial court denied defendant’s

motion, concluding it contained new allegations or arguments and nothing in the motion

supported reconsideration of the court’s earlier decision.

¶ 11 In March 2023, defendant appealed the denial of his motion for leave to file a

successive postconviction petition and the denial of his motion to reconsider. OSAD was

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appointed to represent defendant on appeal. In August 2023, OSAD filed a motion for leave to

withdraw as counsel on the ground the appeal presented no potentially meritorious issues for

review. We granted defendant leave to file a response on or before September 15, 2023.

Defendant has not done so.

¶ 12 II. ANALYSIS

¶ 13 OSAD contends no meritorious argument can be made on appeal the trial court

erred in denying defendant leave to file a successive postconviction petition. We agree.

¶ 14 A. Applicable Law and Standard of Review

¶ 15 The Act provides a means to collaterally attack a criminal conviction based on a

substantial denial of a defendant’s state or federal constitutional rights. People v. Hodges, 234 Ill.

2d 1, 9, 912 N.E.2d 1204, 1208 (2009). A proceeding under the Act is a collateral proceeding

and not an appeal from the defendant’s conviction and sentence. People v. Beaman, 229 Ill. 2d

56, 71, 890 N.E.2d 500, 509 (2008). The Act contemplates the filing of only one postconviction

petition. People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d 609, 619 (2002). A defendant

must obtain leave from the trial court in order to file a successive petition under the Act. 725

ILCS 5/122-1(f) (West 2022).

¶ 16 To obtain leave to file a successive postconviction petition, a defendant must do

one of the following: (1) show cause and prejudice for the failure to raise a claim in his or her

earlier petition or (2) set forth a colorable claim of actual innocence. Pitsonbarger, 205 Ill. 2d at

459. Cause is defined as “some objective factor external to the defense” that prevented the

defendant from raising the claim in an earlier proceeding. (Internal quotation marks omitted.) Id.

at 460. Prejudice is an error so infectious to the proceedings that the resulting conviction or

sentence violates due process. Id. at 464. We review de novo the denial of a motion for leave to

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file a successive postconviction petition. People v. Crenshaw, 2015 IL App (4th) 131035, ¶ 38,

38 N.E.3d 1256.

¶ 17 B. Cause and Prejudice Test

¶ 18 OSAD first contends it can make no meritorious argument on appeal as defendant

did not plead, and cannot satisfy, the cause and prejudice test. We agree.

¶ 19 In his initial postconviction petition, defendant asserted the ineffectiveness of his

trial counsel for failing to object to a misstatement of the law before the jury and asserted the

facial unconstitutionality of the first degree murder statute. In his successive petition, defendant

raised the issues of the need for his statements to law enforcement officers while in the hospital

to have been suppressed, the ineffectiveness of his trial and appellate counsel, and the failure of

trial counsel to interview either Tina Houston or the eyewitnesses mentioned in the police

reports. As for the issues of trial and appellate counsels’ ineffectiveness and trial counsel’s

failure to interview various people, defendant has provided no explanation for why he did not

raise them in his initial petition. In particular, he has not explained any “objective factor external

to the defense” preventing him from raising them in his initial petition. (Internal quotation marks

omitted.) Pitsonbarger, 205 Ill. 2d at 460. Those issues pertained to matters which would have

been known to defendant at the time he filed his initial petition. Defendant therefore cannot

establish cause for failing to raise them in his initial petition. It is unnecessary to separately

consider whether defendant can establish prejudice. See People v. Brown, 225 Ill. 2d 188, 207,

866 N.E.2d 1163, 1174 (2007) (“Because both cause and prejudice must be shown under

Pitsonbarger [citation], defendant’s failure to establish cause is sufficient to preclude him from

attacking his sentence through successive postconviction proceedings.”).

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¶ 20 Moreover, issues adjudicated on direct appeal or in a previous collateral

proceeding are barred by res judicata, and issues that could have been raised, but were not, are

forfeited. People v. Tate, 2012 IL 112214, ¶ 8, 980 N.E.2d 1100. In denying defendant’s pretrial

motion to suppress his statements in the hospital, the trial court determined defendant was not in

custody for Miranda purposes. Reyes, slip order at 13. See Miranda v. Arizona, 384 U.S. 436

(1966). The court therefore had no occasion to address the voluntariness of the ultimately

unnecessary Miranda waiver. Reyes, slip order at 13. On direct appeal, defendant asserted his

statements should have been suppressed specifically because his physical condition while in the

hospital rendered them involuntary. Id. at 12. The State argued such contention was forfeited for

not having been the basis of defendant’s suppression motion. Id. This court agreed. Id. at 13.

Before both the trial court, in his successive petition, and this court, defendant attempts to assert

yet another basis for the suppression of his statements at the hospital not raised in the trial

court—namely, they should have been suppressed because the officers continued questioning

him after he requested an attorney. Because the suppression issue was adjudicated on direct

appeal, consideration of his new suppression argument is barred by res judicata.

¶ 21 C. Actual Innocence Claim

¶ 22 OSAD next contends it can make no meritorious argument on appeal as defendant

has not raised a claim of actual innocence. We agree.

¶ 23 To set forth a claim of actual innocence in a successive postconviction petition:

“[T]he supporting evidence must be (1) newly discovered, (2) material and

not cumulative, and (3) of such conclusive character that it would

probably change the result on retrial. [Citations.] Newly discovered

evidence is evidence that was discovered after trial and that the petitioner

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 could not have discovered through the exercise of due diligence.

[Citation.] Evidence is material if it is relevant and probative of the

petitioner’s innocence. [Citation.] Noncumulative evidence adds to the

information that the fact finder heard at trial. [Citation.] Lastly, the

conclusive character element refers to evidence that, when considered

along with the trial evidence, would probably lead to a different result.

[Citation.]” People v. Robinson, 2020 IL 123849, ¶ 47, 181 N.E.3d 37.

¶ 24 In his motion to reconsider, and not in his successive petition, defendant cited

various cases addressing the subject of newly discovered evidence for a claim of actual

innocence. However, defendant did not explain what, if any, newly discovered evidence

supported an actual innocence claim. This is so even if we interpret those references to argue

actual innocence in his successive petition.

¶ 25 In sum, we agree with OSAD no meritorious argument can be made the trial court

erred in denying defendant leave to file a successive postconviction petition.

¶ 26 III. CONCLUSION

¶ 27 We grant OSAD’s motion for leave to withdraw and affirm the trial court’s

judgment.

¶ 28 Affirmed.

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