Appeal from the Circuit Court of Lake County No. 06-CF-160 Honorable Fred L. Foreman, Judge, Presiding.
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justice Zenoff concurred in the judgment and opinion. Justice Schostok specially concurred, with opinion.
BURKE, PRESIDING JUSTICE.
¶ 1 Defendant, Abdul M. Love, and codefendant, Michael Nelson, were each indicted on one count of unlawful possession of a controlled substance with intent to deliver. While incarcerated and awaiting trial on the possession charge, defendant was charged with solicitation of murder for hire of two of the State's witnesses in his possession case, Nelson and Sergeant Domenic Cappelluti. Defendant was convicted of both offenses and his convictions were affirmed on direct appeal. See People v. Love, 2011 IL App (2d) 091274-U. On July 18, 2011, defendant filed a pro se "Petition for Post Conviction Relief" (initial petition), challenging the solicitation convictions pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), which the trial court summarily dismissed. Defendant did not appeal the summary dismissal of the petition within 30 days. Instead, on February 15, 2012, defendant filed a second pro se postconviction petition and on March 1, 2012, defendant filed an "Amended Second Post Conviction Petition for Relief" (amended petition). The trial court treated the amended petition as a successive postconviction petition, and it denied defendant leave to file it.
¶ 2 On appeal, defendant disputes the trial court's ruling on the amended petition. He maintains that the initial petition should be construed as a petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)), which would then effectively make the amended petition his first postconviction petition. Thus, defendant asserts, the cause should be remanded for second-stage postconviction proceedings. If, however, we agree with the trial court that the initial petition was, in fact, a postconviction petition, defendant contends that we should remand for second-stage postconviction proceedings on the basis that he has demonstrated cause and prejudice for filing a successive postconviction petition. We deem the amended petition successive and affirm the trial court's denial of leave to file it.
¶ 3 I. BACKGROUND
¶ 4 At a hearing on a motion to suppress statements in the solicitation case, the evidence revealed that, after defendant signed a Miranda waiver form, police officers informed defendant that he was under investigation for solicitation of murder and that officers had spoken with Charles Newcomb, a jailhouse informant, and Nelson, who were cooperating in the investigation. Defendant either volunteered or was asked to give his side of the story and he admitted that he wanted to hire someone to murder Nelson and Cappelluti so they could not testify against him in the possession case.
¶ 5 The State elected to proceed on the solicitation charges before proceeding on the possession charge. Following a bench trial, the trial court found defendant guilty of both counts of solicitation. The judgment was entered on October 30, 2008. After a stipulated bench trial on the possession charge, the trial court found defendant guilty. On November 20, 2009, defendant filed separate motions for a new trial in both cases, which were denied. On November 23, 2009, the trial court sentenced defendant to concurrent prison terms of 25 years for the solicitation convictions, to be served consecutively to a 15-year sentence on the possession conviction.
¶ 6 In the direct appeal of both cases, which we consolidated for review, defendant raised one issue: whether the trial court erred in denying defendant's motion to suppress statements, where the police interrogated defendant outside the presence of counsel. We affirmed. People v. Love, 2011 IL App (2d) 091274-U.
¶ 7 Prior to the decision in his direct appeal, on July 18, 2011, defendant filed a pro se "Petition for Post Conviction Relief" in his solicitation case, alleging that he was denied a hearing on the anticipated testimony of Newcomb, which was required by section 115-21(7)(d) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-21(7)(d) (West 2010)).
¶ 8 On the same day that this court affirmed defendant's convictions in the direct appeal, the trial court summarily dismissed defendant's initial petition. Relying on the plain language of section 115-21(7)(d), which provides that the statute applies only to capital cases, the trial court found that defendant's claim had no arguable basis in law or fact and was not cognizable under the Act. Because section 115-21(7)(d) was not applicable, the trial court found that defendant was not entitled to a hearing on the anticipated testimony of Newcomb. The court further noted that defendant alleged the deprivation of "a statutory right and not a constitutional right, and an allegation in a postconviction petition concerning the deprivation of this right is not proper because it does not give rise to a constitutional deprivation." The court concluded that, because of the limiting language of section 122-1(a) of the Act, alleged violations of statutes, such as section 115-21(7)(d), have no remedy under the Act.
¶ 9 Defendant did not file a motion attacking the judgment. Instead, he filed a motion for leave to file a late notice of appeal, which we denied without prejudice, allowing him the opportunity to refile the motion in conformance with Illinois Supreme Court Rule 606(c) (eff. Mar. 20, 2009). Defendant never refiled the motion.
¶ 10 Defendant subsequently filed a pro se "Second Post Conviction Petition for Relief" on February 15, 2012, and a pro se "Amended Second Post Conviction Petition for Relief" on March 1, 2012. In the amended petition, defendant alleged, inter alia, that his appellate counsel in the direct appeal was ineffective for failing to argue that (1) his due process rights were violated when the prosecutor allowed Newcomb to testify falsely that he faced a sentence of "zero to eight years probation, " when the prosecutor knew that Newcomb was actually facing a sentencing range of 20 years' to life imprisonment on federal charges; (2) the State committed a Brady violation by failing to disclose exculpatory evidence that at the time of defendant's trial Newcomb was facing a charge of theft of over $1, 800 worth of government property while he was working as a confidential government informant; (3) trial counsel was ineffective for failing to investigate Newcomb's criminal history and activities and for failing to impeach Newcomb with this information; (4) the prosecutor engaged in misconduct when he failed to disclose material evidence about Nelson's work as a confidential informant; (5) defendant's sixth amendment right to confront witnesses against him was violated when the trial court limited cross-examination of Newcomb; and (6) the solicitation-of-murder-for-hire statute is unconstitutional.
¶ 11 Defendant pointed out that, at trial, Newcomb testified that he was in federal custody and facing a sentence of "[f]rom zero to eight years probation." Defendant attached documents showing that Newcomb was actually facing a sentencing range of 20 years' to life imprisonment. Defendant attached a motion from Newcomb's federal case that he "came into possession of" on February 26, 2009, in which the assistant United States Attorney sought an enhanced sentence of 20 years' to life imprisonment based on Newcomb's criminal history. Defendant also attached Newcomb's motion to continue his trial, which noted that Newcomb was working with the prosecution in defendant's case in the hope of obtaining a sentence below the 20-year minimum. Defendant also alleged that the prosecutor was aware of Newcomb's false testimony at defendant's trial. Defendant appended a two-page transcript from an in camera discussion between the prosecutor and the trial judge, in which the prosecutor informed the judge that, at the time of defendant's trial, Newcomb was facing a minimum sentence of 20 years' imprisonment. Defendant alleged that, despite knowing the actual sentencing range, the prosecutor failed to correct Newcomb's testimony at trial.
¶ 12 Defendant also attached the government's response to Newcomb's motion for severance of his charges, in which the government discussed that Newcomb was charged with distribution of drugs and theft of $1, 800 of government "buy money" while he was working with the government as a confidential informant in a controlled buy of narcotics. Among other documents, defendant also attached an affidavit in which a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives detailed an investigation through which Newcomb was caught selling crack cocaine. Defendant alleged that his trial counsel did not have any knowledge of the documents from Newcomb's federal case.
¶ 13 Relying on People v. Flores, 153 Ill.2d 264, 280 (1992), defendant argued cause for not including these issues in his initial petition in that they would have been premature. In support, defendant included a detailed time line showing that when he filed his initial petition appellate counsel was representing him in his direct appeal and this court had not yet issued its decision. Defendant noted that he had filed the amended petition less than two months after the conclusion of his direct appeal.
¶ 14 On May 14, 2012, the trial court issued a memorandum opinion and order denying defendant leave to file the amended petition as a successive postconviction petition. The trial court, applying the cause-and-prejudice test, found that defendant failed to identify an objective factor that impeded his ability to raise in his initial petition the claims of ineffective assistance of appellate counsel or the underlying due-process claims. Given defendant's failure, the trial court found that defendant did not satisfy the "cause" prong of the cause-and-prejudice test and thus failed to meet the Act's requirements for ...