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The People of the State of Illinois, Appellee v. George Evans

February 22, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
GEORGE EVANS, APPELLANT.



The opinion of the court was delivered by: Justice Thomas

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

Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, and Theis concurred in the judgment and opinion.

Justice Burke dissented, with opinion.

OPINION

¶ 1 The issue in this case is whether the circuit court of Cook County erred in denying defendant George Evans' pro se motion for leave to file a successive petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). We conclude that it did not.

¶ 2 BACKGROUND

¶ 3 In March 2005, defendant was found guilty of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2004)) and sentenced to 12 years in prison. Defendant's conviction and sentence were affirmed on direct appeal. People v. Evans, No. 1-05-0850 (2007) (unpublished order under Supreme Court Rule 23).

¶ 4 In February 2008, defendant filed a pro se post-conviction petition, which the trial court summarily dismissed. The appellate court affirmed that dismissal in an unpublished order entered pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). People v. Evans, No. 1-08-1338 (2009) (unpublished order under Supreme Court Rule 23).

¶ 5 In December 2009, defendant filed a pro se motion for leave to file a successive post-conviction petition. See 725 ILCS 5/122-1(f) (West 2008). In it, he alleged that, when it imposed defendant's 12-year prison sentence, the trial court neither mentioned nor imposed an additional term of mandatory supervised release (MSR). Nevertheless, defendant has since learned that he will be required to serve a three-year term of MSR following his release from prison. According to defendant, enforcement of a three-year MSR term following his release from prison would violate his due process rights because the total time he would be required to serve (15 years) would exceed the term specifically announced by the trial court (12 years). According to the motion, defendant did not include this claim in his initial post-conviction petition because:

"The information about the M.S.R. was not yet discovered to me yet. And when I did learn about it more research need to be done. Also it was still being decided in appeals court, so no case were able to be used as evidence. Basically I Petitioner just discovered this."

Defendant further alleged that he would suffer prejudice if he were unable to assert this claim because, in violation of his due process rights, he was being made "to serve more time than the judge imposed." The trial court denied defendant's request for leave to file the successive petition, noting that defendant was "ignoring the fact that this was not something that he had bargained for." Rather, it was "a sentence after a trial and conviction and mandatory supervised release term is not something the Court has any control over."

¶ 6 Defendant appealed, arguing that his motion for leave to file the successive petition should have been granted because it stated the "gist" of a claim for cause and prejudice-that is, it stated "an arguable claim" of cause and prejudice. In support, defendant cited People v. LaPointe, 365 Ill. App. 3d 914 (2006), aff'd on other grounds, People v. LaPointe, 227 Ill. 2d 39 (2007). In LaPointe, a panel of our appellate court held that, because "[a] motion under section 122-1(f) precedes the preliminary-review stage and thus, like the petition itself, will ordinarily be drafted by a lay person with limited legal skills," it "need state only the gist of a meritorious claim of cause and prejudice." Id. at 924.

¶ 7 The appellate court below rejected defendant's argument for two reasons. First, the court noted that, in People v. Conick, 232 Ill. 2d 132, 142 (2008), this court stated, albeit in a different context, that the cause and prejudice standard is "more exacting" than the simple "gist" standard. According to the appellate court, "[t]he reasonable inference to be drawn from that statement is that the 'gist' standard applicable to first-stage petitions is, contrary to the appellate court's holding in LaPointe, a lower standard than that befitting the cause and prejudice [standard]." 2011 IL App (1st) 100391-U, ¶ 13. Second, the appellate court held that, regardless of the applicable standard, defendant "failed to assert an arguable claim of cause" because, "[b]y operation of law, every sentence includes a term of mandatory supervised release in addition to the term of imprisonment imposed." Id. ¶ 15 (citing 730 ILCS 5/5-8-1(d) (West 2008), and People ex rel. Scott v. Israel, 66 Ill. 2d 190, 194 (1977)). Thus, "the fact that defendant was not consciously aware of the three-year MSR term which attached to his sentence when he filed his initial post-conviction petition does not ...


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