First post conviction petition does not count if the defendant is just trying to reinstall appeal rights. This postconviction petition was dismissed, in part, because it was defendant's second postconviction petition. In the first post conviction petition Defendant just wanted to file a late appeal.
People v. Wilson, 2014 IL App (1st) 113570 (09/12/2014).
Did the first post conviction petition alleging a failure of trial counsel to file a notice of appeal count as a postconvicton petition?
Defendant is serving 110 years for a murder in Chicago. He filed an initial postconviction petition claiming he wanted a direct appeal but trial counsel failed to file the notice of appeal. Defendant was granted leave to file a late appeal. He lost that direct appeal. Defendant then filed a second postconviction petition which was dismissed as a successive petition.
Law: First Post Conviction Petition Doesn't Count
Successive petitions are disfavored and, therefore, to proceed on a successive petition a petitioner must first obtain leave of court by either asserting actual innocence or satisfying the cause-and-prejudice test. People v. Sutherland, 2013 IL App (1st) 113072, ¶ 16; 725 ILCS 5/122-1(f).
To demonstrate cause, a defendant must identify “an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings.” Id. To establish prejudice, a defendant must demonstrate “that the claim not raised *** so infected the trial that the resulting conviction or sentence violated due process.” Id.
A defendant has a right under the Illinois Constitution to appeal a criminal conviction, and a statutory right to “one complete opportunity” to collaterally attack his conviction with a postconviction petition. People v. Little, 2012 IL App (5th) 100547, ¶ 21. Where defendant's first petition was filed only to rescue his right of appeal, “it was not a ‘true collateral attack' and should not be counted as such.” Id.
Analysis: Still Can't Be Frivolous
At the first stage, the circuit court has 90 days to review the petition and may summarily dismiss it if the trial court finds that the petition is frivolous and patently without merit. It was still proper for the trial court to dismiss the postconviction petition because it found the petition to be patently without merit.
At the first stage, the circuit court acts strictly in an administrative capacity by screening out those petitions that are without legal substance or are obviously without merit. People v. Rivera, 198 Ill. 2d 364, 373 (2001).
The court will dismiss the petition if it determines the petition is frivolous or patently without merit (725 ILCS 5/122-2.1(a)(2) (West 2010)), meaning that it has no arguable basis in law or in fact. Hodges, 234 Ill. 2d at 16. A petition lacks an arguable basis in law or in fact if it is based on an indisputably meritless legal theory or a fanciful factual allegation. Id.
Defendant thought the ASA's closing remarks regarding the reason the eyewitnesses delayed in cooperating with the authorities—fear of defendant—were not supported by the record. Defendant also asserts these remarks amounted to the ASA's own opinion and were an improper attempt to bolster the witnesses' credibility.
Here, however, the ASA's remarks about the witnesses' reluctance to cooperate with prosecuting authorities cannot be deemed improper. The circumstances around the shooting fairly supported an inference that the witnesses feared Defendant.
Dismissal of postconviction petition is upheld.