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The People of the State of Illinois v. Victor Tripp

February 17, 2011


Appeal from the Circuit Court of Cook County. No. 95 CR 34971 (02) The Honorable Matthew E. Coghlan, Judge Presiding.

The opinion of the court was delivered by: Justice Lavin


JUSTICE LAVIN delivered the judgment of the court, with opinion.

Presiding Justice Gallagher and Justice Pucinski concurred in the judgment and opinion.


Here, we consider the second petition for post-conviction relief of a defendant convicted of armed robbery. Following a jury trial, defendant was sentenced to four concurrent terms of 55 years' imprisonment for armed robbery in violation of section 18--2 of the Criminal Code of 1961 (720 ILCS 5/18--2 (West 1992)). As grounds for relief, defendant contends that the trial court erred in denying him leave to file a successive post-conviction petition in light of the United States Supreme Court's decision in Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710 (2009). For reasons detailed below, we affirm the trial court.


On November 29, 1995, defendant and two others robbed a jewelry store located in southwest Chicago at gunpoint. Prior to trial, defendant filed a motion to quash his arrest and suppress evidence, arguing that the officers lacked probable cause to search a footlocker found in the backseat of defendant's car at the time of his arrest. At a hearing on the motion, defendant testified that he was standing at the corner of Douglas Boulevard and Sawyer Street in Chicago speaking to Germaine Johnson, a co-defendant. Defendant testified that he was legally parked on Sawyer, facing south on the east side of the street, near the curb, approximately 10 feet from the intersection. Defendant and Johnson talked on the corner for approximately 40 minutes before police arrived. Defendant was about 12 feet from his car when he was arrested and was never in the car while police were at the scene.

The State called officer Michael Soto, who testified that he was on patrol with his partner driving southbound on Sawyer near the intersection of Douglas when he observed a car obstructing traffic on Sawyer. The car, occupied by two black males, was parked in the middle of the street. Officer Soto activated his car's emergency equipment, exited the car, and approached the driver's side of the other car. Officer Soto asked the driver of the car, later identified as defendant, for his license and proof of insurance. When defendant stated he did not have those items, Officer Soto asked him to exit the vehicle and placed him under arrest. After defendant exited the vehicle, with his passenger still in the front seat, Officer Soto noticed a handgun between the two front seats. Officer Soto's partner then instructed the other passenger, later identified as Johnson, to exit the car and both were handcuffed and placed in the officers' squad car. After Officer Soto seized the weapon, he performed a search of the car and recalled that defendant and Johnson partially fit the description of two of the three people who had robbed ajewelry store earlier that day. When Officer Soto searched the car, he discovered gray duct tape, similar to the type used to bind the victims of the robbery, and a large footlocker. Officer Soto and his partner removed the footlocker, pried open its side and saw "numerous amounts of jewelry." Officer Soto also recovered $1,000 in currency, a gold money clip, a gold chain, and several keys from defendant. Officer Soto's partner recovered a gold chain and two gold medallions from Johnson. After hearing the parties' arguments, the trial court denied the motion to suppress, finding that the officers had probable cause to search the car.

On direct appeal to this court, defendant asserted that the trial court erred in denying his motion for a directed finding and his motion to suppress, and that his sentence was excessive, all of which were rejected by this court in a published opinion. People v. Tripp, 306 Ill. App. 3d 941 (1999). Shortly thereafter, our supreme court denied defendant's petition for leave to appeal. People v. Tripp, 185 Ill. 2d 661 (1999). Defendant then filed a pro se post-conviction petition asserting that this court erred when it considered new arguments presented by the State on appeal which were not presented during his suppression hearing, and that his sentence was excessive and disproportionate to that of his co-defendant. On May 9, 2000, the trial court determined that the petition was frivolous and patently without merit and was summarily dismissed pursuant to section 122--2.1 of the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--2.1 (West 2004)).

On September 1, 2009, defendant filed his second post-conviction petition, claiming that his motion to suppress should be granted in light of the Supreme Court's holding in Gant. On October 23, 2009, the trial court denied leave to file the petition on the basis that Gant does not apply retroactively to collateral proceedings. This appeal followed.


The sole issue on appeal concerns defendant's contention that the trial court improperly denied him leave to file a successive petition for post-conviction relief in violation of the Act. Because the resolution of this issue requires the interpretation of a statute, our review is de novo. People v. LaPointe, 227 Ill. 2d 39, 43 (2007).

Defendant first contends that the trial court erred in denying him leave to file a successive post-conviction petition based on the non-retroactivity of Gant because that determination was reserved for second-stage proceedings. Defendant relies on People v. Boclair, 202 Ill. 2d 89, 101 (2002), citing the proposition that because "time limitations in the Act should be considered as an affirmative defense and can be raised, waived, or forfeited, by the State," they are inappropriate grounds for dismissal in first-stage proceedings. This argument "ignores the fact that the Act treats successive petitions differently than initial petitions." LaPointe, 227 Ill. 2d at 44. While the Act permits collateral constitutional challenges to criminal convictions and sentences, the Act generally limits a petitioner to filing one petition. 725 ILCS 5/122--1 et seq. (West 2008); People v. Holman, 191 Ill. 2d 204, 209 (2000). Section 5/122--1(f) of the Act provides: "Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure." 725 ILCS 5/122--1(f) (West 2008).

The plain language of section 122--1(f) expressly conditions leave to file a successive post-conviction petition on the petitioner's satisfaction of the cause-and-prejudice test. LaPointe, 227 Ill. 2d at 44. In People v. Tidwell, 236 Ill. 2d 150 (2010), the defendant filed a successive petition for post-conviction relief but did not explicitly ask for leave of court to file a successive post-conviction petition. Our supreme court held that "a successive post-conviction petition is not considered 'filed' for purposes of section 122--1(f), and further proceedings will not follow, until leave is granted, a determination dependent upon a defendant's satisfaction of the cause-and-prejudice test." Tidwell, 236 Ill. 2d at 161. Our supreme court concluded that the trial court properly performed the review called for by section 122--1(f), i.e. the cause-and-prejudice test, by "enter[ing] a thorough and reasoned order, denying leave to file the successive post-conviction petition, based upon the contents of the petition submitted." Tidwell, 236 Ill. 2d at 162. In other words, "there was no jurisdictional bar to the circuit court's sua sponte ruling on the matter." Tidwell, 236 Ill. 2d at 162.

Here, defendant filed a motion seeking leave to file a successive post-conviction petition based on Gant. The trial court considered, but ultimately rejected defendant's allegations, concluding that defendant failed to satisfy the cause-and-prejudice test. In our view, the trial court conducted its analysis of defendant's successive post-conviction petition as required by section ...

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