Appeal from Circuit Court of McLean County No. 99CF1016 Honorable Alesia A. McMillen, Judge Presiding.
PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.
Justices Appleton and Knecht concurred in the judgment and opinion.
¶ 1 Defendant, James C. Snow, appeals the McLean County circuit court's (1) dismissal of his amended post-conviction petition at the second-stage of the proceedings, (2) denial of his March 2011 motion to supplement the record, and (3) denial of his motion for ballistics testing. On appeal, defendant only challenges the court's dismissal of the claims in his amended post-conviction petition and the denial of his motion for ballistics testing. We affirm.
¶ 3 In September 1999, a grand jury charged defendant with three counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38, ¶¶ 9-1(a)(1), (a)(2), (a)(3)) for the death of William Little on March 31, 1991. Defendant's January 2001 trial took place over the course of nine days, and the parties presented testimony from 56 witnesses. Defendant was represented by Frank Picl and Patrick Riley and the State was represented by then McLean County State's Attorney Charles Reynard and assistant Teena Griffin. The jury found defendant guilty of first degree murder on all three counts. Defendant filed a posttrial motion and a pro se motion asserting he was denied effective assistance of trial counsel. After an April 2001 hearing, the trial court concluded defendant received effective assistance of counsel and declined to appoint new counsel for defendant. In May 2001, the court denied defendant's posttrial motion and sentenced defendant to natural life in prison. Defendant then filed a motion to reconsider his sentence, which the court denied. Defendant appealed his convictions and sentences.
¶ 4 On appeal, defendant argued (1) the trial court erred by not appointing him new counsel for a hearing on his ineffective-assistance-of-counsel claims, (2) the court erred by not allowing him to present expert testimony regarding eyewitness identification, (3) the court erred in admitting several pieces of evidence, (4) the prosecutor made several improper remarks during her closing arguments, (5) the court erred in giving an accountability instruction, (6) the State failed to prove him guilty beyond a reasonable doubt, (7) he was denied effective assistance of counsel, and (8) the court erred in sentencing him to natural life in prison. This court vacated defendant's convictions and sentences on the knowing-murder and felony-murder counts because defendant could only stand convicted of one murder for Little's death (see People v. Cardona, 158 Ill. 2d 403, 412, 634 N.E.2d 720, 724 (1994)) and affirmed defendant's conviction and sentence for intentional murder in all other respects. People v. Snow, No. 4-01-0435 (Aug. 20, 2004) (unpublished order under Supreme Court Rule 23). The Supreme Court of Illinois denied defendant's petition for leave to appeal. People v. Snow, 212 Ill. 2d 549, 824 N.E.2d 290 (2004).
¶ 5 In May 2004, defendant filed his pro se post-conviction petition. The next month, he filed a pro se supplemental amendment to his petition. In February 2006, defendant filed a pro se second supplemental amendment to his post-conviction petition. The next month, defendant's counsel filed an amended post-conviction petition. In January 2008, defendant again filed a pro se amended post-conviction petition. In April 2008, the Exoneration Project entered its appearance on defendant's behalf.
¶ 6 In January 2010, the Exoneration Project filed a motion for discovery and a 53-page amended petition for post-conviction relief. Attached to the amended petition were 32 exhibits. The amended motion did not indicate it incorporated or is a supplement to defendant's other post-conviction petitions. The next month, defendant filed a motion to transfer venue, noting former McLean County State's Attorney Reynard had become a circuit court judge and would likely be a witness at an evidentiary hearing. In April 2010, the State filed a motion to dismiss defendant's amended post-conviction petition. Thereafter, in response to defendant's motion to transfer venue, Judge Alesia A. McMillen of Schuyler County was assigned to hear this case. In August 2010, defendant filed (1) a response to the State's motion to dismiss and (2) a motion to supplement the record with two additional exhibits. On November 5, 2010, the trial court held a hearing on the State's motion to dismiss. By agreement of the parties, the court allowed defendant's August 2010 motion to supplement. The court took the motion to dismiss under advisement. The parties both later filed supplemental responses addressing the matters raised by the court at the hearing on the State's motion to dismiss. In March 2011, defendant filed another motion to supplement the record with newly discovered evidence, consisting of three more exhibits. He also filed a motion for post-conviction ballistics testing under section 116-3 of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/116-3 (West 2010)). On April 21, 2011, the trial court filed its order, granting the State's motion to dismiss defendant's amended post-conviction petition. The court's dismissal mooted defendant's motion for discovery, which the court never heard. On May 9, 2011, the court filed an order, denying defendant's March 2011 motion to supplement the record and motion for ballistics testing.
¶ 7 On May 16, 2011, defendant filed his notice of appeal in sufficient compliance with Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009). See Ill. S. Ct. R. 651(d) (eff. Dec. 1, 1984) (providing the supreme court rules governing criminal appeals apply to appeals in post-conviction proceedings). The notice of appeal stated defendant was appealing the "[w]ritten rulings of April 19, 2011 and May 9, 2011, denying [defendant]'s post-conviction petition, motions to supplement, and motions for ballistic testing." Accordingly, this court has jurisdiction under Illinois Supreme Court Rule 651(a) (eff. Dec. 1, 1984).
¶ 9 A. Post-conviction Petition
¶ 10 Defendant first asserts the trial court erred by dismissing his amended post-conviction petition without an evidentiary hearing. In support of his contention, defendant specifically contends the court applied the wrong standard of review and erred by dismissing his (1) actual-innocence claim; (2) ineffective-assistance-of-counsel claim; (3) claim under Brady v. Maryland, 373 U.S. 83 (1963); (4) other due-process claims; and (5) cumulative-error claim.
¶ 11 Initially, we remind defendant, the appellant in this case, of the briefing requirements on appeal. As this court has noted in a second-stage dismissal case, Illinois Supreme Court Rule 341(h)(7) provides, " '[p]oints not argued [in the appellant's brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.' " People v. Borello, 389 Ill. App. 3d 985, 998, 906 N.E.2d 1250, 1261 (2009) (quoting Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006)). Additionally, Rule 341(h)(7) requires the contentions raised in the argument section of the brief to be supported by citation to legal authority and the pages of the record relied on, not the appendix. Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006). The failure to do so results in forfeiture of the argument. Byrd v. Hamer, 408 Ill. App. 3d 467, 487, 943 N.E.2d 115, 134 (2011). Moreover, this court is not a depository into which the appellant can dump his burden of argument and research. See Barth v. State Farm Fire & Casualty Co., 371 Ill. App. 3d 498, 507, 867 N.E.2d 1109, 1117 (2007). Accordingly, we only will address the issues and supporting evidence properly raised in defendant's brief.
¶ 12 1. Standard of Review
¶ 13 The Post-Conviction Hearing Act (Post-conviction Act) (725 ILCS 5/art. 122 (West 2004)) provides a remedy for defendants who have suffered a substantial violation of constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471, 861 N.E.2d 999, 1007 (2006). In cases not involving the death penalty, the Post-conviction Act sets forth three stages of proceedings. Pendleton, 223 Ill. 2d at 471-72, 861 N.E.2d at 1007.
¶ 14 At the first stage, the trial court independently reviews the defendant's post-conviction petition and determines whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2004). If it finds the petition is frivolous or patently without merit, the court must dismiss the petition. 725 ILCS 5/122-2.1(a)(2) (West 2004). If the court does not dismiss the petition, it proceeds to the second stage, where, if necessary, the court appoints the defendant counsel. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Defense counsel may amend the defendant's petition to ensure his or her contentions are adequately presented. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Also, at the second stage, the State may file a motion to dismiss the defendant's petition or an answer to it. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1008. If the State does not file a motion to dismiss or the court denies such a motion, the petition advances to the third stage, wherein the court holds a hearing at which the defendant may present evidence in support of his or her petition. Pendleton, 223 Ill. 2d at 472-73, 861 N.E.2d at 1008. In this case, the State did file a motion to dismiss, and the court granted that motion.
¶ 15 With the second-stage of the post-conviction proceedings, the trial court is concerned merely with determining whether the petition's allegations sufficiently demonstrate a constitutional infirmity that would necessitate relief under the Post-conviction Act. People v. Coleman, 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998). At this stage, "the defendant bears the burden of making a substantial showing of a constitutional violation" and "all well-pleaded facts that are not positively rebutted by the trial record are to be taken as true." Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008. The court reviews the petition's factual sufficiency as well as its legal sufficiency in light of the trial court record and applicable law. People v. Alberts, 383 Ill. App. 3d 374, 377, 890 N.E.2d 1208, 1212 (2008). However, our supreme court has emphasized that, when a petitioner's claims are based upon matters outside the record, the Post-conviction Act does not intend such claims be adjudicated on the pleadings. People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092, 1105 (2000). At a dismissal hearing, the court is prohibited from engaging in any fact finding. Coleman, 183 Ill. 2d at 380-81, 701 N.E.2d at 1071. Thus, the dismissal of a post-conviction petition at the second stage is warranted only when the allegations in the petition, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d at 382, 701 N.E.2d at 1072. We review de novo the trial court's dismissal of a post-conviction petition at the second stage. Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008.
¶ 16 Defendant contends the trial court applied the wrong standard in reviewing his amended post-conviction petition as it found his evidence was not credible and asserts the court's dismissal should be reversed on that reason alone. However, with a first-stage dismissal, the Second District has found a trial court's utilization of the wrong standard is not a basis for reversing the dismissal. People v. Dominguez, 366 Ill. App. 3d 468, 473, 851 N.E.2d 894, 900 (2006); but cf. People v. Newbolds, 364 Ill. App. 3d 672, 679, 847 N.E.2d 614, 621 (2006) (finding the court's use of the improper standard at the first stage was a basis for reversing its dismissal of the post-conviction petition). The Dominguez court explained that, since a reviewing court may affirm on any proper ground, a procedurally proper summary dismissal based on an improper ground may still be affirmed. Dominguez, 366 Ill. App. 3d at 473, 851 N.E.2d at 900. Thus, the reviewing court should apply the proper standard and "affirm if, in accordance with that standard, the summary dismissal is justified." Dominguez, 366 Ill. App. 3d at 473, 851 N.E.2d at 900.
¶ 17 We find the rationale of Dominguez well reasoned and also applicable to second-stage dismissals since a reviewing court may affirm a trial court's dismissal at the second stage on any grounds substantiated by the record, regardless of the trial court's reasoning. See People v. Demitro, 406 Ill. App. 3d 954, 956, 942 N.E.2d 20, 22 (2010). Our de novo review utilizing the proper standard addresses the trial court's use of an improper one if it did so. Thus, we conclude the use of an improper standard in analyzing a post-conviction petition at the second stage does not itself serve as a basis for reversal, and we need not address whether the trial court used the wrong standard.
¶ 19 Defendant next argues the trial court improperly dismissed his actual-innocence claim. The State disagrees.
¶ 20 A freestanding claim of actual innocence is cognizable under the Post-conviction Act because a wrongful conviction of an innocent person violates due process under the Illinois Constitution. People v. Barnslater, 373 Ill. App. 3d 512, 519, 869 N.E.2d 293, 299 (2007). Such a claim must be "based on newly discovered, material, and non-cumulative evidence that the defendant is innocent of the crime for which he has been tried, convicted, and sentenced." People v. Harris, 206 Ill. 2d 293, 301, 794 N.E.2d 181, 187 (2002). Moreover, an actual-innocence claim only entitles a defendant to relief when "the evidence is of such a conclusive character that it would probably change the result of retrial." Harris, 206 Ill. 2d at 301, 794 N.E.2d at 188.
¶ 21 Since the trial court found almost all of defendant's evidence supporting an actual-innocence claim was not newly discovered evidence, we begin our analysis there. With an actual-innocence claim, newly discovered evidence is defined as "evidence that was unavailable at trial and could not have been discovered sooner through due diligence." Harris, 206 Ill. 2d at 301, 794 N.E.2d at 187. The defendant bears the burden of showing no lack of due diligence on his or her part. See Barnslater, 373 Ill. App. 3d at 525, 869 N.E.2d at 304. Moreover, if the evidence was available at a prior posttrial proceeding, the evidence is also not newly discovered evidence. See People v. English, 403 Ill. App. 3d 121, 133, 933 N.E.2d 366, 379 (2010) (finding the evidence was not newly discovered evidence where the evidence was available at trial and when the initial post-conviction petition was filed). Evidence is also not newly discovered when the evidence "presents facts already known to a defendant at or prior to trial, though the source of these facts may have been unknown, unavailable or uncooperative." People v. Collier, 387 Ill. App. 3d 630, 637, 900 N.E.2d 396, 403 (2008).
¶ 22 Despite the requirement a defendant must show due diligence in the discovery of the supporting evidence, defendant's amended post-conviction petition does not assert any due diligence in discovering the evidence supporting defendant's actual-innocence claim. Defendant simply suggests the evidence is new because it was not made part of the record during his trial. On its face, most of defendant's supporting evidence would have been available at defendant's trial or direct appeal with the exercise of due diligence. The only supporting material clearly after defendant's trial and direct appeal are the facts and rulings in People v. Beaman,229 Ill. 2d 56, 890 N.E.2d 500 (2008), and People v. Drew, No. 4-08-0011 (Dec. 4, 2008) (unpublished order under Illinois Supreme Court Rule 23).
¶ 23 In his appellate brief, defendant suggests recantations are an exception to the newly discovered evidence requirement. See Barnslater, 373 Ill. App. 3d at 524, 869 N.E.2d at 304. A defendant may present a witness's recantation as newly discovered evidence, even though the defendant knew the witness had perjured himself or herself. Barnslater, 373 Ill. App. 3d at 524, 869 N.E.2d at 304. However, the exception will not apply "if the defendant had evidence available at the time of trial to demonstrate that the witness was lying." Barnslater, 373 Ill. App. 3d at 524, 869 N.E.2d at 304. Thus, the defendant has the burden of showing other evidence of the lying could not have been discovered before trial with due diligence. See Barnslater, 373 Ill.
App. 3d at 525, 869 N.E.2d at 304. While defendant cites Barnslater, he does not address the fact the recantation exception does not apply to all recantations. Defendant also does not address the due-diligence requirement with regard to the recantations in either his petition or his brief. Due to defendant's failure to plead and argue in his brief due diligence, defendant has failed to meet his burden of showing the recantations were newly discovered evidence.
¶ 24 Besides the recantations, the only other evidence for which defendant attempts to meet the newly discovered evidence requirement on appeal is Jeffery Pelo's and Carlos Luna's affidavits. ...