THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. BRYANT U. SMITH, Defendant-Appellant.
Docket No. 4-11-0220
Appellate Court of Illinois, Fourth District
March 28, 2013
Modified upon denial of rehearing May 10, 2013
2013 IL App (4th) 110220
Hon. Heidi N. Ladd, Judge, presiding.
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Decision Under Review: Appeal from the Circuit Court of Champaign County, No. 06-CF-1998; the Hon. Heidi N. Ladd, Judge, presiding.
Judgment: Affirmed.
Julia Rietz, State‘s Attоrney, of Urbana (Patrick Delfino, Robert J. Biderman, and Luke McNeill, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
Panel: JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Pope and Turner concurred in the judgment and opinion.
OPINION
¶ 1 Defendant, Bryant U. Smith, appeals from an order of thе circuit court of Champaign County dismissing his second and third successive petitions for relief under the Post-Conviction Hearing Act (Act) (
I. BACKGROUND
¶ 2 In December 2006, the State charged defendant with unlawful possession with intent to deliver 400 grams or more but less than 900 grams of a substance containing cocaine (
¶ 3 At defendant‘s jury trial, the evidence showed the following. With respect to the execution of a search warrant, Champaign police officer Thomas Walker testified that around 7:13 p.m. on November 30, 2006, he assisted law-enforcement officials in securing an apartment located at 2403 North Neil Street in Champaign. No individual was present in the apartment. The east bedroom appeared to belong to adults. The room contained men‘s and women‘s clothing. Inside a nightstand drawer, Walker found a small amount of cannabis, a cell phone, various receipts, handwritten notes, and mail addressed to defendant.
¶ 4 Walker assisted another law-enforcement official in searching the bedroom closet. Walker pulled down several shoe boxes from the top shelf. Walker found a handgun in one of the shoe boxes. The shoe box was stamped “size 13.” There were seven rounds of ammunition sitting next to the gun. Several of the rounds were in a magazine. Several other rounds were loose.
¶ 5 Deputy Eric Shumate testified he assisted in the search of the bedroom closet. He located a black plastic bag on the top shelf of the closet with a second plastic bag inside the black plastic bag, and a small cooler inside the second plastic bag. Inside the cooler, Shumate
¶ 6 During the execution of the search warrant, Deputy Chad Beasley found a piece of mail addressed to defendant and Christina Estergard, the other resident of the apartment. The mail, a bank transaction notice, was addressed to the apartment the law-enforcement officials were searching.
¶ 7 Roderick Adams testified fоr defendant that he helped defendant move to Sherwood Court in July 2006. Defendant moved into Rochelle Humphrey‘s house. Humphrey testified for defendant that defendant had been living with her at 10 Sherwood Court in Champaign beginning in approximately May 2006. Adams and Humphrey testified that defendant and Estergard were friends.
¶ 8 Defendant testified that he did not livе in an apartment at 2403 North Neil Street and did not know anything about the drugs and firearm in the apartment. Defendant admitted that he kept clothing and other personal effects in the apartment and he wore size 13 shoes. Defendant admitted he shared a bank account with Estergard and provided the bank the North Neil Street address.
¶ 9 The jury convicted defendant on both charges. On May 31, 2007, defendant filed a motion for new trial arguing the State failed to prove him guilty beyond a reasonable doubt. Following a hearing, the trial court denied the motion. The court sentenced defendant to 30 years in prison on the unlawful-possession-with-intent-to-deliver conviction and 7 years in рrison on the unlawful-possession-of-a-weapon-by-a-felon conviction, with those sentences to be served concurrently.
¶ 10 Defendant appealed arguing the State failed to prove him guilty beyond a reasonable doubt. This court affirmed, stating the jury could have found that the State established defendant had constructivе possession of the drugs and weapon. People v. Smith, No. 4-07-0857 (July 28, 2008) (unpublished order under Supreme Court Rule 23).
¶ 11 On August 18, 2010, defendant filed an initial pro se postconviction petition. Although titled “Actual Innocence Post-Conviction Petition,” defendant did not assert a claim of actual innocence. Defendant alleged (1) the trial court failed to comply with
¶ 12 On November 29, 2010, defendant filed a “Successive Post-Conviction Petition” and an
¶ 13 Thе “Amended Petition” was mostly a duplicate of the postconviction petition defendant filed on August 18, 2010. On February 11, 2011, the trial court dismissed the successive petitions as filed without leave of court pursuant to People v. DeBerry, 372 Ill. App. 3d 1056, 868 N.E.2d 382 (2007).
¶ 14 This appeal followed.
II. ANALYSIS
¶ 15 Defendant first argues the trial court erred in treating his “Successive Post-Conviction Petition” and “Amended Petition for Successive Post-Conviction Relief” as successive postconviction petitions instead of a motion to amend and reconsider the summary dismissal of the initial postconviction petition defendant filed on August 18, 2010. We disagree.
¶ 16 The Act sets forth a procedural mechanism through which a defendant can assert that “in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.”
¶ 17 “The Act is not a substitute for an appeal, but rather, is a collateral attack on a final judgment.” People v. Edwards, 2012 IL 111711, ¶ 21, 969 N.E.2d 829. Thus, where a defendant has previously taken an appeal from a judgment of conviction, the ensuing judgment of the reviewing court will bar, under the doctrine of res judicata, postconviction review of all issues actually decided by the reviewing court, and any other claims that could have been presented to the reviewing court will be deemed waived. People v. Neal, 142 Ill. 2d 140, 146, 568 N.E.2d 808, 811 (1990);
¶ 18 “The Act generally limits a defendant to one post-conviction petition.” People v. Holman, 191 Ill. 2d 204, 210, 730 N.E.2d 39, 43 (2000). “Successive postconviction petitions are disfavored under the Act[,] and a defеndant attempting to institute a successive postconviction proceeding, through the filing of a second or subsequent postconviction petition, must first obtain leave of court.” People v. Gillespie, 407 Ill. App. 3d 113, 123, 941 N.E.2d 441, 451 (2010). To obtain leave of court to file a successive petition, a defendant must either demonstrate “actual innocence” or satisfy thе cause-and-prejudice test codified in section 122-1(f) of the Act (
¶ 19 We review the dismissal of defendant‘s successive postconviction petitions de novo. Edwards, 197 Ill. 2d at 247, 757 N.E.2d at 447. We may affirm on any basis supported by the record if the judgment is correct. People v. Johnson, 208 Ill. 2d 118, 129, 803 N.E.2d 442, 449 (2003).
¶ 20 The trial court did not err when it treated defendant‘s “Successive Post-Conviction Petition” and “Amended Petition for Successive Post-Conviction Relief” as successive postconviction petitions. The petitions cite the Act in support of their claims and are labeled “Successive Post-Conviction Petition” and “Amended Petition for Successive Post-Conviction Relief.” Along with the petitions, defendant filed a “Motion To Proceed in Forma Pauperis,” in which he requested “that he be permitted to file the attached petitions to proceed with a Successive Post-Conviction Petition.” He also moved for the appointment of counsel. In his prayer for relief, defendant asked “that he be granted leave to file the attached Successive Post-Conviction Petition.” In a request directed to the clerk of the circuit court, defendant asked “this Honorable Court to please accept my handwritten successive Post-Conviction Petition.”
¶ 21 Defendant is correct that a trial court has discretion to allow a defendant to amend a postconviction petition. The Act states that “[t]he court may in its discretion make such order as to amendment of the petition *** as shall be appropriate, just and reasonable and as is generally provided in civil cases.”
¶ 22 In support of his argument, defendant relies on People v. Scullark, 325 Ill. App. 3d 876, 759 N.E.2d 565 (2001). In Scullark, the trial court summarily dismissed the defendant‘s postconviction petition as untimely. The defendant did not ask to amend his petition and no motion to amend or amended pleading was filed. However, the defendant did file a motion to reconsider which contained the allegations that he was free from culpable nеglect in failing to file his petition in a timely manner. The court denied the defendant‘s motion to reconsider.
¶ 23 On appeal, the defendant argued his failure to include allegations in his postconviction petition that he was not culpably negligent should not result in dismissal of his petition. Scullark, 325 Ill. App. 3d at 879-80, 759 N.E.2d at 571. The Scullark court agreed, holding that where a defendant fails to plead his lack of culpable negligence and the trial court summarily dismisses his petition as untimely, the defendant may allege facts supporting his lack of culpable negligence in a motion to reconsider the summary dismissal. If the defendant alleges sufficient facts, the trial court must then grant leave to amend the petition even though no formal request for such leave was made. Scullark, 325 Ill. App. 3d at 882-83, 759 N.E.2d at 573-74.
¶ 24 Since Scullark, our supreme court has held the Act does not authorize the dismissal of a postconviction petition during the initial stage based on untimeliness. Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 740. “Any allegations on those matters are irrelevant at the first stage of the proceedings.” People v. Perkins, 229 Ill. 2d 34, 48, 890 N.E.2d 398, 406 (2007). Contrary to the holding in Scullark, the issue of untimeliness is left for the State to raise during second-stage proceedings and a defendant can amend his petition accordingly.
¶ 25 Here, the trial court dismissed defendant‘s initial postconviction petition on the grounds of untimeliness and forfeiture. Given the holding in Boclair, the court should not have summarily dismissed defendant‘s petition based on untimeliness. See Boclair, 202 Ill. 2d at 99, 789 N.E.2d at 740 (“We hold that the Act dоes not authorize the dismissal of a post-conviction petition during the initial stage based on untimeliness.“). However, the court also dismissed defendant‘s initial petition as patently without merit based on forfeiture grounds. The court could properly dismiss the petition on forfeiture grounds. See People v. Blair, 215 Ill. 2d 427, 442, 831 N.E.2d 604, 614 (2005) (A trial court may summarily dismiss a postconviction рetition during the first stage of postconviction proceedings based on res judicata and waiver.); see also People v. Shaw, 386 Ill. App. 3d 704, 708, 898 N.E.2d 755, 760 (2008) (“The trial court may also dismiss claims that are (1) barred by res judicata or (2) forfeited because the defendant could have but did not raise them in an earlier proceeding.“).
¶ 26 Defendant did not file a motion to reсonsider the summary dismissal of his petition and did not appeal. Instead, defendant filed his second and third successive postconviction petitions. For the reasons stated, the trial court did not err when it treated defendant‘s “Successive Post-Conviction Petition” and “Amended Petition for Successive Post-Conviction Relief” as succеssive postconviction petitions.
¶ 27 Defendant next argues the trial court erred in summarily dismissing his “Successive Post-
III. CONCLUSION
¶ 28 For the reasons stated, we affirm the trial court‘s judgment. As part of our judgment, we award the state its $50 statutory assessment against defendant as costs of this appeal.
¶ 29 Affirmed.