Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois Honorable Charles H. Stengel, Judge, Presiding.
The opinion of the court was delivered by: Justice Schmidt
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Presiding Justice Carter and Justice Wright concurred in the judgment and opinion.
Defendant, Scott English, appeals the dismissal of his post-conviction petition. Following a hearing on the State's motion to dismiss, the trial court found the doctrine of res judicata barred consideration of defendant's claims. Defendant asserts the trial court erred in dismissing his petition as the acts constituting his felony murder conviction arose from and were inherent in the underlying felony of aggravated battery of a child. We affirm.
As this court has previously considered this matter in People v. English, No. 3-96-0767 (2000) (unpublished order under Supreme Court Rule 23) (English I), and People v. English, 381 Ill. App. 3d 906 (2008) (English II), and the facts are well known to the parties, we will only briefly recite the facts of the case.
In October of 1995, the State charged defendant in the death of three-year-old Jami Sue Pollock. Originally, the State charged defendant with first degree murder (720 ILCS 5/9-1(a)(2) (West 1996)), first degree felony murder predicated on the felony of aggravated battery of a child (720 ILCS 5/9-1(a)(3) (West 1996)), and aggravated battery of a child (720 ILCS 5/12-4.3(a) (West 1996)). Evidence adduced at trial showed Jami had 10 separate bruises on her body when brought into the emergency room. The bruises appeared to range between one week and one day old. Defendant admitted to the police that he struck Jami a number of times as routine measures of discipline on the night she was found unresponsive, but could not tell exactly where on her body he struck her as she was bundled in blankets.
A forensic pathologist testified that, during the autopsy, she found "many, many, many" bruises and "many, many injuries" on Jami's body. Jami's face was pale and bruised, as if she "either had something pressed against her face or her face pressed against something." Jami had fingernail scratches on her chest that appeared self-inflicted as she tried "to scratch or scrape or claw something away." Jami had an eight-centimeter bruise on the back of her head and "massive" hemorrhaging beneath her scalp caused by "heavy, rapid or massive" force to Jami's head.
According to the pathologist, Jami's injuries were inconsistent with being struck as described by defendant or wrapped too tightly in a blanket. The pathologist attributed Jami's death to blunt force injuries to her head and chest, and asphyxia, either of which would have caused death.
At the close of trial, the circuit court granted the State's motion to dismiss the first degree murder charge. Over defense counsel's objection, the circuit court refused to instruct the jury on the offense of involuntary manslaughter. The jury found defendant guilty on the charges of felony murder and aggravated battery of a child. The circuit court then sentenced defendant to natural life.
In English I, this court held "the circuit court did not abuse its discretion when it did not instruct the jury on involuntary manslaughter." English I, slip op. at 11. In reaching that conclusion, the English I court noted that the trial court instructed the jury on both recklessness and knowing conduct and stated that, "The evidence in this case shows that English acted with intent to cause great bodily harm. The jury found English guilty of aggravated battery of a child and, therefore, that he acted intentionally or knowingly. It could not also have found that he acted recklessly. Consequently, the jury found English guilty of felony murder. Had the jury found that English merely acted recklessly, it should have acquitted him of aggravated batty of a child and could not have convicted him of felony murder." English I, slip op. at 11.
As the statute under which the circuit court imposed defendant's life sentence was found to violate the single subject clause (see People v. Wooters, 188 Ill. 2d 500 (1999)), we vacated defendant's life sentence on direct appeal in English I and remanded for further proceedings. English I, slip op. at 12.
In 1999, during the pendency of defendant's direct appeal, he filed a post-conviction petition, which he later voluntarily dismissed on August 6, 2003. Then, in 2004, he filed another post-conviction petition. The trial court treated the 2004 petition as a successive petition and dismissed it on May 24, 2004, pursuant to the State's motion. Defendant then filed a motion to reinstate his original 1999 petition. By order entered September 26, 2005, the trial court denied defendant's motion to reinstate and defendant, again, appealed to this court.
In English II, this court held it had no jurisdiction to consider the dismissal of defendant's 2004 post-conviction petition as the trial court dismissed that petition on May 24, 2004, and defendant failed to file a timely notice of appeal. English II, 381 Ill. App. 3d at 909. However, the English II court noted that defendant did, in fact, file a timely notice of appeal after denial of his motion to reinstate his 1999 petition. In addressing that matter, the English II court held the trial court erred in denying defendant's motion to reinstate his 1999 petition. English II, 381 Ill. App. 3d at 910. The court noted that defendant voluntarily dismissed his 1999 petition on August 6, 2003, and moved to reinstate the petition on August 5, 2004. As post-conviction proceedings are civil in nature, the English II court found that pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2004)), defendant had one year to refile or reinstate his voluntarily dismissed petition. English II, 381 Ill. App. 3d at 910. As such, the English II court reversed ...