People v. EvansPeople v. Evans
O R D E R
¶ 1 Held: Denial of motion for leave to file a successive post-conviction petition affirmed where defendant failed to demonstrate cause for not raising sentencing claim in initial post-conviction petition.
¶ 2 Defendant George Evans appeals from an order of the circuit court of Cook County denying his pro se motion for leave to file a successive petition for relief under the Post-Conviction Hearing Act (Act).
¶ 4 On February 13, 2008, defendant filed a pro se petition for post-conviction relief alleging, essentially, that the trial court failed to inform him that he was being sentenced pursuant to the Truth in Sentencing Act and, thus, required to serve 85% of his sentence, and that it also failed to make a finding of severe bodily injury so as to subject him to the provisions of the Truth in Sentencing Act. The circuit court summarily dismissed this petition, and we affirmed that dismissal on appeal after granting the public defender‘s motion for leave to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). People v. Evans, No. 1-08-1338 (2009) (unpublished order under Supreme Court Rule 23).
¶ 5 On December 14, 2009, defendant filed a pro se motion requesting leave to file a successive post-conviction petition. He asserted that his right to due process was violated when the court failed to admonish him of the three-year term of mandatory supervised release (MSR) which attached to his 12-year sentence. He claimed that if he were required to serve those three years of MSR in addition to his 12-year sentence, the actual time served would exceed the term announced by the trial court, which, he claimed, is unlawful under Earley v. Murray, 451 F.3d 71 (2d Cir. 2006).
¶ 6 Defendant further maintained that there was cause for his failure to assert his claim in his initial petition, stating:
“The information about the M.S.R. was not yet discovered to me yet. And when I did learn about it more research need to be done. Also it was still being decided in appeals court, so no case
were able to be used as evidence. Basically I Petitioner just discovered this.”
He also maintained that he would suffer prejudice if he were unable to assert his claim.
¶ 7 On January 4, 2010, the circuit court denied defendant leave to file a successive petition, noting that defendant was “ignoring the fact that this was not something that he had bargained for.” Rather, it was “a sentence after a trial and conviction and mandatory supervised release term is not something the Court has any control over.” This appeal followed.
¶ 8 Under the Act, proceedings are initiated by the filing of a petition verified by affidavit in the circuit court in which the conviction took place (
¶ 9 To show cause, defendant must identify an objective factor, external to the defense, that impeded his ability to raise his claim during his initial post-conviction proceedings.
¶ 10 Defendant maintains that the circuit court erred in denying him leave to file a successive post-conviction petition where he stated “an arguable claim” of cause and prejudice. He
¶ 11 As an initial matter, the State takes issue with the analysis set forth in defendant‘s brief because he has imported certain principles associated with the first-stage review of a post-conviction petition into his discussion of cause and prejudice. Specifically, defendant relies on People v. LaPointe, 365 Ill. App. 3d 914, 924 (2006) for the proposition that he is only required to state the “gist” of a claim of cause and prejudice, i.e., a claim with an arguable basis in law or fact (People v. Hodges, 234 Ill. 2d 1, 16 (2009)). He also claims that the allegations in his petition must be taken as true “at this stage,” citing People v. Coleman, 183 Ill. 2d 366 (1998) and People v. Williams, 392 Ill. App. 3d 359 (2009).
¶ 12 The State maintains that application of the gist standard under the present circumstances “transgresses the cause and prejudice standard.” The State also claims that when determining whether defendant has established cause and prejudice, this court need not assume the truth of the allegations in his successive petition because first-stage post-conviction principles do not apply, and because he bears the burden of establishing cause and prejudice.
¶ 13 We believe that the Second District‘s holding in LaPointe, 365 Ill. App. 3d at 924, that defendant must state only the gist of a meritorious claim of cause and prejudice,1 is questionable.
¶ 14 We also find that defendant‘s reliance on Coleman and Williams for the proposition that his allegations of cause and prejudice must be taken as true is misplaced. In Coleman, 183 Ill. 2d at 380-81, the supreme court noted that all well-pleaded facts must be taken as true at the dismissal stage of post-conviction proceedings. In Williams, 392 Ill. App. 3d at 366-67, this court noted the same in the context of the first-stage review of a successive post-conviction petition when actual innocence was alleged, thereby excusing defendant from demonstrating cause and prejudice (People v. Ortiz, 235 Ill. 2d 319, 330 (2009)). Here, unlike those cases, defendant‘s petition had not yet reached the dismissal stage of proceedings because he had not been granted leave to file it pursuant to
¶ 15 Those shortcomings notwithstanding, the record shows that defendant has failed to assert an arguable claim of cause for his failure to raise the instant claim in his initial post-conviction petition. By operation of law, every sentence includes a term of mandatory supervised release in
¶ 16 Because a showing of both cause and prejudice is required, defendant‘s failure to establish cause precludes him from challenging his sentence in a successive post-conviction proceeding, and his claim is procedurally defaulted. People v. Brown, 225 Ill. 2d 188, 207 (2007). We therefore affirm the order of the circuit court of Cook County denying defendant leave to file a successive post-conviction petition.
¶ 17 Affirmed.