THE PEOPLE OF THE STATE OF ILLINOIS, Aрpellee, v. DEMARIO D. REED, Appellant.
Docket No. 124940
SUPREME COURT OF THE STATE OF ILLINOIS
December 3, 2020
2020 IL 124940
JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Anne M. Burke and Justices Kilbride, Garman, Theis, and Neville concurred in the judgment and opinion. Justice Michael J. Burke specially concurred, with opinion.
¶ 1 This case presents the issue of whether a guilty plea prevents a defendant from asserting an actual innocence claim under the Post-Conviction Hearing Act (Act) (
¶ 2 BACKGROUND
¶ 3 On September 29, 2014, defendant was charged by information with a count of armed violence (
¶ 4 The charges were supported by an officer‘s sworn testimony to the following. While patrolling in a marked patrol car, the officer observed several subjects sitting on the front porch of a residence located in an area that was viewed as a high-crime area and where large amounts of narcotics were sold. Upon seeing an officer exiting the car to make voluntary contact with the subjects, defendant jumped up and ran inside the house. The owner of the residence later informed the officer that defendant did not have permission to enter the residence.
¶ 5 The officer further observed that, as defendant jumped up, he grabbed the right side of his right leg just above the knee and continued to do so as he ran into the residenсe. The police report described defendant‘s leg as stiff and not bending normally.
¶ 6 Soon after defendant ran inside, the second subject, Davie Callaway, fled from the couch into the dining room. The third subject stayed seated on the couch with his hands in the air. After the other subjects were secured, the officer located defendant lying facedown on a bed in a bedroom located on the southwest corner of the house.
¶ 7 The officers then searched defendant‘s flight path, which was described by two witnesses inside the residence. By the bed in the northwest bedroom, officers recovered a cellophane wrapper for a cigarette pack that contained 0.4 grams of crack cocaine. Under the bed, the officers discovered a sawed-off shotgun that was
¶ 8 Upon a search incident to arrest, officers further found approximately 1.5 grams of suspected crack cocaine on Davie Callaway and a digital scale on defendant.
¶ 9 After defendant‘s unsuccessful motion to dismiss the charges, the parties presented to the court a plea agreement under which defendant would plead guilty to one count of armed violence in exchange for a sentence of 15 years’ imprisonment. As its factual basis to support the plea, the State averred that “Officer Daniels would testify that he observed” “the defendant flee upon sight of him. The defendant was running oddly. When he entered the house, he located a shotgun and cocaine. The defendant was located in a bedroom, and the shotgun had the defendant‘s DNA on it.” The court then properly admonished defendant pursuant to Illinois Supreme Court Rule 402 (eff. July 1, 2012). After confirming the plea was made knowingly and voluntarily, the court accepted the plea and found defendant guilty of armed violence (
¶ 10 Defendant‘s initial post-conviction petition under the Act (
¶ 11 Unlike his initial petition, defendant attached the affidavit of Davie Callaway to support his claim of innocence, which was dated October 15, 2015. Callaway averred that he was the sole owner of the cocaine found in the residence and that defendant had zero knowledge of the presence of cocaine in that residence. Callaway‘s testimony lacked any reference to the shotgun.
¶ 12 The circuit court allowed leave to file the petition. The State filed a motion to dismiss, arguing, inter alia, that defendant could not assert a freestanding claim of innocence. It relied on People v. Barnslater, 373 Ill. App. 3d 512, 527 (2007), rev‘d on other grounds, People v. Robinson, 2020 IL 123849, ¶ 55, which stated in dicta that “defendant‘s postconvictiоn claim of actual innocence cannot be deemed to deprive him of his due process rights in the face of the fact that the defendant previously confessed to the commission of the crime in his plea.”
¶ 13 Defendant‘s petition proceeded to a third stage evidentiary hearing, where Callaway testified in accordance with his affidavit. On cross-examination, Callaway admitted he did not write the affidavit until he was imprisoned with defendant. He further acknowledged speaking with defendant about his intention to provide the affidavit while imprisoned together but claimed that defendant never requested him to write it. Callaway explained that he felt bad that defendant was charged with possession because of him.
¶ 14 On January 20, 2017, the circuit court denied defendant‘s petition. It found Callaway‘s testimony was new but not credible, specifically noting that he did not come forward until after he pled guilty and was in the same prison as defendant. It also found that Callaway‘s affidavit was not of such conclusive character that it would probably change the result on retrial because, at the time of defendant‘s plea, defendant knew pointing the fault at codefendants for possessing the drugs was a viable defense. Defendant appealed.
¶ 15 The appellate court affirmed but on different grounds. It found that a valid guilty plea forecloses a post-conviction claim of actual innocence. See 2019 IL App (4th) 170090. In support of its holding, the appellate court relied upon People v. Cannon, 46 Ill. 2d 319, 321 (1970), wherein this court stated: ” ‘Before his plea of
¶ 16 We granted defendant‘s petition for leave to appeal pursuant to Illinois Supreme Court Rule 315 (eff. July 1, 2018).
¶ 17 ANALYSIS
¶ 18 This appeal arises from defendant‘s post-conviction petition under the Act, which provides a statutory remedy to defendants who claim substantial violations of their rights occurred in the proceedings that resulted in their conviction. People v. English, 2013 IL 112890, ¶ 21. A post-conviction petition is not a substitute for appeal but, rather, is a collateral attack. Id. Accordingly, issues that were raised and decided on direct appeal are barred by res judicata, and issues that could have been raised on direct appeal, but were not, are forfeited. Id. ¶ 22. Defendant bears the burden of proving that a substantial violation occurred. Id. ¶ 21.
¶ 19 Over 20 years ago, in People v. Washington, 171 Ill. 2d 475, 489 (1996), this court found a freestanding claim of actual innocence is cognizable under the Act. We reasoned that the “[i]mprisonment of the innocent would also be so conscience shocking as to trigger operation of substantive due process.” Id. at 487-88. Also, to ignore such a claim would be fundamentally unfair in terms of procedural due process. Id. at 487.
¶ 21 The appellate court relied on Cannon, which considered claims in defendant‘s petition that were not argued on appeal after determining the issue before the court lacked merit. Cannon, 46 Ill. 2d at 321. The Cannon court found the unargued claims “amоunt basically to an unsupported assertion that the accusation against him was false and that his daughter and two of his sons were coerced by threats from their mother, the defendant‘s wife.” Id. The court further noted: “Before his plea of guilty was accepted, the defendant, represented by appointed counsel, was fully and carefully admonished by the trial judge, and in the light of that admonition, the defendant‘s present claim cannot be entertained.” Id.
¶ 22 However, not all Illinois decisions agree that Cannon controls this issue. In People v. Shaw, 2019 IL App (1st) 152994, ¶ 54, the First District disagreed with the appellate court decision here and found that a guilty-plea defendant may bring an actual innocence claim without challenging the validity of the plea. It first determined that Washington made no distinction between defendants whose convictions arise out of a trial or out of a guilty plea in holding that “no person convicted of a crime should be deprived of life or liberty given compelling evidence of actual innocence” and that it believed the tenet should apply equally in either circumstance. (Emphasis omitted.) Id. ¶ 45. In explaining its departure from Reed, 2019 IL App (4th) 170090, the Shaw court found that the statement in Cannon was not only dicta but too imprecise to express this court‘s explicit intention to create such a significant rule. Shaw, 2019 IL App (1st) 152994, ¶ 52. It also noted that Reed is only the third case to cite Cannon for any purpose and that no other case has read Cannon to create “a categorical bar.” Id. ¶ 49. Therefore, in light of this court‘s more recent statements in Washington, Cannon‘s dicta cannot be read to prohibit actual innocence claims following guilty pleas in all circumstances. Id. ¶ 52.
¶ 23 The issue of actual innocence was not briefed nor argued before the court and was not essential to the disposition in Cannon. As acknowledged by the Fourth and First Districts, Cannon‘s statements are therefore dicta, which is not binding on this court. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 236 (2010). This
¶ 24 Consequently, the issue of whether defendants who plead guilty waive any claim of actual innocence under the Act is one of first impression. To determine whether there is waiver, we must consider the motives behind and consequences of a plea in light of the precise challenge asserted by an actual innocence claim. People v. Phipps, 238 Ill. 2d 54, 62 (2010). Issues of waiver are construed liberally in favor of the defendant. Id.
¶ 25 Negotiated guilty pleas are the result of an agreement between the State and defendant, in which both parties benefit and make concessions. People v. Eckhardt, 127 Ill. 2d 146, 151-52 (1989). The State benefits from the prompt and largely final disposition of most criminal cases, which preserves prosecutorial and judicial resources for cases in which there are substantial issues of proof. People v. Boyt, 109 Ill. 2d 403, 416 (1985); Brady v. United States, 397 U.S. 742, 752 (1970). These benefits motivate the State to make certain concessions, including sacrificing the opportunity to present the entirety of the evidence, dismissal of certain charges, and ceasing further investigation that may result in additional charges.
¶ 26 Defendants also incur substantial benefits and burdens as the result of a plea agreement. To defendants’ benefit, they can obtain a favorable sentence and dismissal of other charges. Talarico v. Dunlap, 177 Ill. 2d 185, 195 (1997); People v. Jones, 144 Ill. 2d 242, 269-70 (1991). They also avoid the agony and cost of trial. Talarico, 177 Ill. 2d at 195; Brady, 397 U.S. at 752.
¶ 27 The consequences of a plea for a defendant, however, are severe. People v. Evans, 174 Ill. 2d 320, 326 (1996). A guilty plea is an admission of guilt and a conviction in and of itself. People v. White, 2011 IL 109616, ¶ 17 (“The plea obviates the prosecution‘s burden of proof. It supplies both evidence and verdict, ending controversy.” (Internal quotation marks omitted.)). It is specifically designed to waive the right to a jury trial, relieving the State of its burden to prove defendant guilty beyond a reasonable doubt. People v. Townsell, 209 Ill. 2d 543, 547 (2004) (citing Hill v. Cowan, 202 Ill. 2d 151, 154 (2002)). As such, by pleading, a defendant “waives all nonjurisdictional defenses or defects,” including
¶ 28 Because a plea entails significant consequences for both parties, the State argues that defendant cannot now assert a claim of innocence. Specifically, the State highlights the defendant‘s waiver of his right to a jury trial, to present defenses, and to proof beyоnd a reasonable doubt. It also contends that allowing a claim of innocence would dissuade it from entering plea negotiations where the benefit of finality and certainty that motivates it to make concessions may be collaterally attacked. We disagree.
¶ 29 In Washington, this court held that our constitution affords additional due process when newly discovered evidence shows that a convicted person is actually innocent on the basis that “[n]o person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.”
¶ 30 In addressing the federal precedent on the matter, we explicitly rejected the notion that a defendant must be viewed as guilty absent a constitutional еrror in the underlying proceedings. Id. at 488. This is so because a strong claim of innocence undermines the legal construct that precludes a substantive due process analysis and dictates defendant be viewed as guilty. Id. At the point where the evidence undermines the court‘s confidence in this legal construct, the additional due process afforded by our constitution is triggered. Id.
¶ 31 Upon a closer examination of Washington and the precise contentions of an actual innocence claim, the State‘s arguments are unconvincing. Because the claim does not assert a challenge to the sufficiency of the evidence or any error in the proceedings that led to the conviction (id.), defendant‘s waiver of his right to challenge the State‘s proof of guilt beyond a reasonable doubt at trial should not impact his actual innocence claim. Significantly, the State and appellate court overlooked that a ” ‘truly persuasive demonstration of innocence’ ” brеaks the barriers established by the legal construct that precludes a substantive due process
¶ 32 The purpose of our criminal justice system is to seek justice. United States v. Nobles, 422 U.S. 225, 230 (1975) (citing Berger v. United States, 295 U.S. 78, 88 (1935)); Washington, 171 Ill. 2d at 493 (McMorrow, J., specially concurring). Justice means not only punishing the guilty but also ensuring the innocent do not suffer. Nobles, 422 U.S. at 230 (citing Berger, 295 U.S. at 88). We note that, as a part of the criminal justice system, the prosecution has the same duty and interest in seeking the truth and justice. People v. Beaman, 229 Ill. 2d 56, 73 (2008) (“The prosecutor‘s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Internal quotation marks omitted.)).
¶ 33 Plea agreements, while vital to our criminal justice system (Evans, 174 Ill. 2d at 325), are not structured to “weed out the innocent” or guarantee the factual validity of the conviction (Schmidt v. State, 909 N.W.2d 778, 788 (Iowa 2018)). See Missouri v. Frye, 566 U.S. 134, 144 (2012) (” ‘To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is.’ ” (quoting Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992))); Brady, 397 U.S. at 757-58 (“This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury.“). The plea system encourages defendants to engage in a cost-benefit assessment where, after evaluating the State‘s evidence of guilt compared to the evidence available for his defense, a defendant may choose to plead guilty in hopes of a more lenient punishment than that imposed upon a defendant who disputes the overwhelming evidence of guilt at trial. See Jones, 144 Ill. 2d at 269; Brady, 397 U.S. at 756. As such, it is well accepted that the decision to plead guilty may be based on factors that have nothing to do with defendant‘s guilt. See Brady, 397 U.S. at 757-58; Talarico, 177 Ill. 2d at 195. Empirical data related to exonerations further prove that innocent people plead guilty, as 18% of all exonerees and 11% of those exonerated through DNA pled guilty. Peter A. Joy & Kevin C. McMunigal, Post-Conviction Relief After a Guilty Plea? 35 Crim. Just. 53, 55 (Summer 2020).
¶ 35 Accordingly, pleas are no more foolproof than trials. Brady, 397 U.S. at 758. When met with a truly persuasive demonstration of innocence, a conviction based on a voluntary and knowing plea is reduced to a legal fiction. Washington, 171 Ill. 2d at 488. At that point, the additional due process afforded by the Illinois due process clause is triggered despite the legal construct—the entire plea proceedings including defendant‘s waiver of all nonjurisdictional defects—that precludes a guilty-plea defendant‘s claim. Id.
¶ 36 Moreover, we emphasize this court‘s long-established preference for life and liberty over holding defendant to his plea. People v. King, 1 Ill. 2d 496, 500 (1953) (per curiam); People v. McKirdie, 45 Ill. 2d 300, 302 (1970). Recently, in Gaines, 2020 IL 125165, ¶¶ 43-44, we reaffirmed that courts may allow defendants to withdraw their pleas based on claims of innocence or where the court doubts the truth of the pleas, even where the court already accepted the plea. In People v. Belcher, 199 Ill. 2d 378, 383 (2002), we also allowed a defendant to file a motion to withdraw his plea based upon a misunderstanding of law regarding his insanity defense for the first time on appeal. While the issue of waiver by plea was not raised in the above cases, they support the conclusion that sometimes a manifest injustice outweighs the consequences of defendant‘s voluntary plea.
¶ 37 In light of these considerations, we find the defendant‘s waiver of his right to challenge the State‘s proof of guilt beyond a reasonable doubt at trial in the proceedings that led to his conviction does not prevent him from asserting his right to not be deprived of life and liberty given compelling evidence of actual innocence under the Act.
¶ 39 The State‘s application of the invited error doctrine is equally unpersuasive. The invited error doctrine is akin to equitable estoppel in that a party “may not request to proceed in one manner and then later contend *** that the course of action was in error.” People v. Carter, 208 Ill. 2d 309, 319 (2003). Under this doctrine, the State claims defendants cannot voluntarily and knowingly plead guilty to the trial court then turn around and complain to a reviewing court that the trial court found them guilty.
¶ 40 As explained above, a claim of innocence is not based on the defendant‘s misapprehension of the quality of the State‘s case nor an error of the court in finding defendant guilty. Rather, it is a request for the additional due process that is triggered by new and compelling evidence demonstrating defendant‘s innocence. Washington, 171 Ill. 2d at 487. Defendant did not invite the deprivation of his liberty despite compelling evidence of his innocence when he lacked knowledge of and could not reasonably discover such evidence at the time of his plea.
¶ 41 This court refuses to turn a blind eye to the manifest injustice and failure of our criminal justice system that would result from the continued incarceration of a demonstrably innocent person, even where a defendant pleads guilty. See id. at 489; id. at 493 (McMorrow, J., specially concurring). Accordingly, we find defendants who plead guilty may assert an actual innocence claim under the Act. Shaw, 2019 IL App (1st) 152994, ¶ 54; People v. Knight, 405 Ill. App. 3d 461, 472 (2010).
¶ 42 Despite the State‘s contentions, we do not believe our decision will diminish its motivation to engage in plea negotiations, nor does it ignore the interests of finality and certainty involving guilty pleas. An actual innocence claim is not unrestrained and still must be proven. This hurdle has proven to be difficult for defendants, and a successful claim of innocence is rare. See People v. Coleman, 2013 IL 113307,
¶ 43 Defendant argues that this court should apply the standard expounded by Washington, which requires “supporting evidence be new, material, noncumulative and, most importantly, of such conclusive character as would probably change the result on retrial.” (Internal quotation marks omitted.) Washington, 171 Ill. 2d at 489. While defendant contends Washington can be expanded to apply to defendants who plead guilty, he fails to specify such standard and only notes that the court should compare the new evidence against that in the plea proceedings below.
¶ 44 The State asserts that guilty-plea defendants are incapable of meeting the Washington standard because the court cannot determine whether the new evidence would probably change the result on retrial where there was no trial. Instead, this court should adopt a standard of reliability similar to that in federal courts, Schlup v. Delo, 513 U.S. 298 (1995), particularly, thаt guilty-plea defendants must provide new forensic evidence.
¶ 45 While defendant‘s plea does not prevent him from asserting an actual innocence claim under the Act, it necessarily places the court in a different position than in Washington. Defendant‘s waiver of a trial prevented the State from admitting the entirety of its evidence against defendant into the record, leaving only defendant‘s admission of guilt and stipulation of the factual basis of the plea. Without the developed record produced by a trial, a court cannot determine whether the new evidence sufficiently undermines the evidence presented at trial such that it would probably change the result on retrial. The strict application of Washington is therefore impractical in cases where defendants plead guilty.
¶ 46 Moreover, unlike a trial where reviewing courts often lack the insight on how the jury weighed the evidence in making its determination, the guilt of defendants who plead guilty is еntirely dependent upon their admission of guilt and stipulation of the factual basis. Consequently, the court is left to weigh the new evidence against voluntary and knowing admission of guilt.
¶ 47 A plea of guilty is a grave act that is not reversible at the defendant‘s whim. Evans, 174 Ill. 2d at 326. Leave to withdraw a plea of guilty should not be granted
¶ 48 Upon these considerations, the standard for actual innocence claims for guiltyplea defendants requires a more stringent standard than in Washington. See People v. Schneider, 25 P.3d 755, 761 (Colo. 2001) (en banc). Yet, the standard must be less than redeciding the defendant‘s guilt, as that is not the determination the court must make. See People v. Molstad, 101 Ill. 2d 128, 136 (1984) (“this does not mean that [the defendant] is innocent, merely that all of the facts and surrounding circumstances *** should be scrutinized more closely to determine [his] guilt or innocence“); Coleman, 2013 IL 113307, ¶ 97. “If it were, the remedy would be an acquittal, not a new trial.” Coleman, 2013 IL 113307, ¶ 97.
¶ 49 We therefore find a successful actual innocence claim requires a defendant who pleads guilty to provide new, material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably result in acquittal. New means the evidence was discovered after the court accepted the plea and could not have been discovered earlier through the exercise of due diligence. Id. ¶ 96. This is a comprehensive approach where the court must determine whether the new evidence places the evidence presented in the underlying proceedings in a different light and “undercuts the court‘s confidence in the factual correctness” of the conviction. Id. ¶ 97.
¶ 50 This higher standard strikes an equitable balance between the defendant‘s constitutional liberty interest in remaining free of undeserved punishment and the State‘s interest in maintaining the finality and certainty of plea agreements, while vindicating the purpose of the criminal justice system to punish only the guilty. Because the evidence must be clear and convincing, the standard inherently requires the court to consider the evidence to be reliable.2 We therefore see no reason to further limit defendants who plead guilty by requiring them to support their petition with forensic evidence.
¶ 52 Although the circuit court lacked the guidance of this opinion regarding the applicable standard, it nevertheless found defendant did not meet the less stringent Washington standard. Defendant contends the trial court‘s denial was manifestly erroneous because it based its credibility determination regarding Callaway on a mistake of law. He explains that, absent inconsistencies or obfuscations, the court should follow Callaway‘s undisputed testimony that he came forward based on his guilty conscience rather than question Callaway‘s credibility based on the fact that Callaway and defendant were in prison together, because they had no control over where they were imprisoned.
¶ 53 Based on our examination of the record, we cannot say that the trial judge‘s decision to reject Callaway‘s testimony was manifestly erroneous. Defendant‘s innocent explanations for the trial court‘s concerns regarding Callaway‘s credibility are plausible, but plausibility is not the test on review. Morgan, 212 Ill. 2d at 161. We addressed only whether the new evidence was sufficiently compelling that a decision by the trial court to reject that evidence was manifestly erroneous. Id.
¶ 54 We cannot say it was unreasonable for the court to question the truthfulness of Callaway, where he came forward only after being imprisoned and discussing the case with defendant. The trial court is in the best position to make this determination, as it had the benefit of observing Callaway‘s demeanor during examination and assessing his testimony against the other evidence. Id. at 162. There is nothing in the record to undermine its judgment in this case.
¶ 55 We therefore affirm the denial of defendant‘s petition.
¶ 57 In light of the rationale underlying Washington‘s determination that an actual innocence claim asserts a violation of due process, a defendant whose conviction is the result of a guilty plea may assert an actual innocence claim under the Act. To obtain relief under such claim, a guilty-plea defendant must provide new, material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably result in acquittal. Because the record provides no reason to depart from the trial court‘s determination that defendant‘s new evidence was not credible, we affirm the dismissal of defendant‘s petition.
¶ 58 Affirmed.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DEMARIO D. REED, Appellant.
Docket No. 124940
SUPREME COURT OF THE STATE OF ILLINOIS
December 3, 2020
2020 IL 124940
¶ 60 I agree with my colleagues that defendants who plead guilty should not be completely foreclosed from bringing actual innocence claims. I further agree that defendant‘s petition was properly denied on the merits. I write separately because I believe that the standard for such claims should be higher than the one adopted by the majority. I would also give trial judges more leeway to dispose of such cases at the leave-to-file stage.
¶ 61 The State correctly notes that there are compelling reasons why defendants who plead guilty should not be able to bring postconviction actual innocence claims. First, by pleading guilty, a defendant relinquishes the constitutional protections intended to prevent the conviction of innocent people (see Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)), including the right to hold the State to its burden of proof beyond a reasonable doubt (Hill v. Cowan, 202 Ill. 2d 151, 154 (2002)). Second, the State offers significant concessions to defendants who plead guilty. The State is motivated to do so because of (1) the efficiency of forgoing a full criminal trial and (2) the certainty and finality of a guilty plea. Third, by entering into a plea agreement, the State loses its opportunity to present its full case and instead provides only a summary of the evidence sufficient to establish a factual basis for the pleas. See People v. Barker, 83 Ill. 2d 319, 327-28 (1980) (“the quantum of proof necessary to establish a factual basis for the plea is less than that necessary to
¶ 62 Still, because we recognized in Washington that the “[i]mprisonment of the innocent would *** be so conscience shocking as to trigger operation of substantive due process” (People v. Washington, 171 Ill. 2d 475, 487-88 (1996)) and that ignoring such claims would be fundamentally unfair as a matter of procedural due process (id. at 487), I would not completely foreclose guilty plea defendants from bringing postconviction claims of actual innocence. For all the policy reasons set forth above, however, the standard for doing so should be higher than that for defendants convicted after a trial. I аgree with the Schneider court that “there must be some consequence attached to the decision to plead guilty.” Schneider, 25 P.3d at 761.
¶ 63 The standard that the majority settles on is that a defendant who pleads guilty must provide “new, material, noncumulative evidence that clearly and convincingly demonstrates that a trial would probably result in acquittal.” (Emphasis added.) Supra ¶ 49. Other states have adopted a clear and convincing evidence standard for actual innocence claims by guilty plea defendants but have worded it differently. For instance, both Iowa and Texas require that the defendant show by clear and convincing evidence that no reasonable factfinder could find the defendant guilty. See Schmidt v. State, 909 N.W.2d 778, 797 (Iowa 2018) (“the applicant must show by clear and convincing evidence that, despite the evidence of guilt supporting the conviction, no reasonable fact finder could convict the applicant of the crimes for which the sentencing court found the applicant guilty in light of all the evidence, including the newly discovered evidence“); Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002) (standard for freestanding innocence claims, whether after trial or guilty plea is that the applicant must show “by clear and convincing
¶ 64 Although the burden should be very high for a defendant who pleaded guilty, I do not agree with the State‘s suggestion that the door should be left open only for those defendants who obtain forensic evidence pursuant to section 116-3 of Code of Criminal Procedure of 1963 (
¶ 65 I would, however, give trial courts the ability to deny leave to file successive petitions when defendants such as the present one have failed to set forth a colorable claim of actual innocence. The majority adopts the clear and convincing standard but never sets forth what standard a petitioner must meet at each stage of the proceedings. When a postconviction petitioner raises a freestanding claim of actual
¶ 66 At the leave-to-file stage, I would use a standard similar to the one this court originally adopted for the leave-to-file stage when a petitioner raised a freestanding claim of actual innocence. In People v. Edwards, 2012 IL 111711, this court adopted a “no reasonable juror” standard for the leave-to-file stage of successive postconviction proceedings involving actual innocence claims. This court held that leave to file should be granted only “when the petitioner‘s supporting documentation raises the probability that ‘it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.’ ” Id. ¶ 24 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).3 Where it was clear that a petitioner had provided an affidavit that failed to meet this standard, courts were free to deny leave to file. See id. ¶¶ 39-40. The affidavit that defendant filed here
¶ 67 The majority explains that reliability determinations are to be made at a third-stage evidentiary hearing. Supra ¶ 50 n.2. That said, defendant‘s petition could have been dismissed without the court making a reliability determination. Prior to this court‘s decision in Robinson, it was clear that a trial court could dismiss a petition when the supporting affidavits were not conclusive evidence of innocence but merely would have given the factfinder conflicting evidence to consider. See Sanders, 2016 IL 118123. In Sanders, this court acknowledged that reliability determinations can only be made at a third-stage evidentiary hearing and that at the previous stages all well-pleaded allegations not positively rebutted by the record must be taken as true. Id. ¶¶ 41-42. Nevertheless, this court affirmed the dismissal of the petition without an evidentiary hearing when the petitioner‘s affidavits would have merely added conflicting evidence for the jury to consider. Id. ¶¶ 52-53.
¶ 68 As I explained in my dissent in Robinson, the only way that Sanders makes sense is that if what is meant by “taking the affidavits as true” is that we assume that, had the affiants been called to testify, they would have testified under oath consistently with their affidavits. See Robinson, 2020 IL 123849, ¶ 110 (Burke, J., dissenting, joined by Garman and Karmeier, JJ.). If this court had been forced to assume in Sanders that the factfinder would have believed the statements in the affidavits, then this court would have had no choice but to reverse the lower courts and remand for an evidentiary hearing. Id. But this is not what the court did. The Sanders court affirmed the dismissal of the petition on the basis that the testimony
“In Sanders, the codefendant stated he was alone when he committed the offense and that his prior testimony identifying the petitioner as participating in the crime was not true. [Sanders, 2016 IL 118123,] ¶ 16. A witness who provided an аffidavit in support of the successive postconviction petition averred that the codefendant acted alone at all times when she was observing the commission of part of the offense (aggravated kidnapping). Id. ¶ 15. If all that were required was to take the recantation and averment as true and would be believed by a reasonable juror and ask if the defendant could still be convicted, then the result of the petitioner‘s trial in Sanders would have to have been different: based on that “true” evidence Sanders did not commit aggravated kidnapping and did not participate in the murder. The only explanation for our supreme court‘s holding is that more is required of courts considering claims of actual innocence.” Simms, 2020 IL App (1st) 161067, ¶ 42.
See also People v. Jones, 2020 IL App (1st) 171760-U, ¶ 64 (“Following Sanders, we must determine whether the proposed new evidence would merely add conflicting or contrary evidence to the evidence heard at trial, even where, as in Sanders, the postconviction evidence includеs statements that the defendant was not involved in the crime.” (Emphasis added.)); People v. Vargas, 2020 IL App (1st) 172568-U, ¶ 43 (same).5
¶ 69 As I pointed out in my Robinson dissent, in certain circumstances this court has indeed used “taken as true” to mean that we presume that the affiant would have testified in a matter consistent with their affidavits. See Robinson, 2020 IL 123849, ¶ 110 (Burke, J., dissenting, joined by Garman and Karmeier, JJ.) (taking affidavits
¶ 70 The Robinson majority‘s wholly unconvincing explanation of how its result was consistent with Sanders is that Sanders was decided in a “significantly different procedural context” because it was a secоnd stage case and the petitioner faces a heavier burden at the second stage. Id. ¶ 59. But, as I pointed out in my dissent, this is a distinction without a difference because the “taken as true” requirement applies equally at the leave-to-file and second stages. See id. at 106 (Burke, J., dissenting, joined by Garman and Karmeier, JJ.); see also People v. Brown, 2017 IL App (1st) 150132, ¶ 61 n.2, vacated on other grounds and appeal dismissed, No. 123252 (Ill. Jan. 24, 2019) (“Although we recognize that Sanders arose from a slightly different procedural posture than this case, in that it was an appeal from a second-stage dismissal of a successive postconviction petition ***, the requirement that all wellpleaded factual allegations are taken as true applies equally in this case as in Sanders, and it is thus helpful to our analysis of this issue.“).
¶ 71 The Robinson majority failed to explain how raising a petitioner‘s burden from a “probability” to a “substantial showing” changes the meaning of what it means to take an affidavit as true. And the reason that explanation was lacking is obvious: there is no explanation. Nevertheless, Robinson left Sanders in place and therefore the state of Illinois lаw is that, at the leave-to-file stage of postconviction proceedings, a court must presume that a reasonable juror would believe the testimony set forth in the new affidavits (Robinson), but at the second stage a court does not have to presume that a reasonable juror would believe the evidence and may dismiss the petition if the new affidavits are not conclusive and would merely add conflicting evidence to what the jury heard (Sanders).